### Michael L. 

### Dworkin (CA Bar#64047) MICHAEL L. 

### DWORKINandASSOCIATES 465 California Street, Suite 210 SanFrancisco, CA 94104 Telephone: 415-421-2500 FAX: 415-421-2560 Email: law@avialex.com
Counsel for MARTINAIRE AVIATION, LLC 

# RECEIV

HEARING

UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.



### Inthe Matter of: FAACaseNo. 20llSW700189 DMS No. FAA-2013-0040

MARTINAIREAVIATION, LLC MARTINAIRE AVIATION,LLC'S REQUEST FORJUDICIALNOTICE



### Judge: The Honorable Richard C. Goodwin

TO THEDEPARTMENT OF TRANSPORTATION, THE HONORABLE RICHARD C. GOODWIN, ADMINISTRATIVELAWJUDGE, AND TO THEADMINISTRATOR, FEDERALAVIATION ADMINISTRATION AND illSATTORNEYS OF RECORD: Respondent, MARTINAIRE AVIATION, LLC, herebyrequests thatthe
Administrative Law Judge take JudicialNotice ofthe following:
l. FAA Order 2150.3B, FAA Compliance andEnforcement Program, 

### including butnotlimitedto Appendix CandFigure C-1;
2. Complainant's "Agency'sResponsesto Respondent's FirstRequestfor
Production ofDocuments", in the instantmatter, servedonJuly 24, 2012, includingbutnotlimitedto responsesto Requeststo Produce

### Nos. 1.12, 1.13, 1.14 and 1.15, and attachmentsthereto.
3. OrderAssessing CivilPenalty, FAA Case No. 2012SW700081 (Atlantic SouthwestAirlines, Inc., $77,000.00);
4. OrderAssessing CivilPenalty, FAA Case No. 2011SW700155 (SouthwestAirlines Company, $32,000.00);
5. OrderAssessing Civil Penalty, FAACase No.2011SW700182 (EthiopianAirlines, $160,000.00);
6. OrderAssessing Civil Penalty, FAACase No. 2011SW700093 (Federal Express Corporation, $24,500.00);
7. OrderAssessing Civil Penalty, FAACase No.2010SW700184 (SouthwestAirlines Company, $62,000.00);
8. OrderAssessing Civil Penalty, FAA CaseNo. 2010SW700147 (Express JetAirlines, Inc., $5,000.00);
9. OrderAssessing Civil Penalty, FAA CaseNo. 2008SW700060 (AmericanAirlines, Inc., $41,500.00);
10. OrderAssessing CivilPenalty, FAA Case No. 2008SW700060 (AmericanAirlines, Inc., $41,500.00);
11. OrderAssessing Civil Penalty, FAA Case No. 2008SW700102 (AmericanAirlines, Inc., $45,000.00);
12. OrderAssessing Civil Penalty, FAA Case No. 2008SW700123 (AmericanAirlines, Inc., $22,500.00);
13. OrderAssessing Civil Penalty, FAA Case No. 2010SW700146 (Continental Airlines, Inc., $32,000.00); and 2 FAA Case No. 2011SW700189/FAADocketNo. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S REQUEST FORJUDICIAL NOTICE

### 14. OrderAssessing Civil Penalty, FAA CaseNo. 2007SW700311 (World Airways, Inc., $25,000.00).
The Courthas authority to takejudicialnotice ofthe foregoing documents which:

a. are generally known withinthe Court'sjurisdiction (Federal Rule of
Evidence ("FRE") Rule 201);
b. canbe accurately andreadily verified from sources whose accuracy
cannotreasonably be questioned (FRE Rule 20I);

c. Constitute admissionsby aparty-opponent, i.e., Complainant (FRE
Rule 80l(d)); and d. Constitutepublic records and reports (FRE 803(8), 902(4) and (5) and 1005). Copies oftherelevantpages ofthoseitems listedinparagraphs I through 14 above, are attachedherewith

.



### .. Datedthislithday ofMay, 2014

MichaelL. Dworkin Attorney for Respondent, MARTINAIREAVIATION, LLC

3 FAA Case No. 2011SW700189/FAADocketNo. FAA-2013-0040 MARTINAIREAVIATION, LLC'S REQUEST FORJUDICIAL NOTICE >

### CERTIFICATE OF SERVICE
Theundersignedhereby certifiesthatonthis_f!/!!'J.ay ofMay, 2014, atrue andcorrect copy ofthe foregoing: 

### MARTINAIRE AVIATION, LLC'S REQUEST FORJUDICIALNOTICE

was served as follows:

The Honorable Richard C. Goodwin Office ofHearings, M-20 1200NewJersey Avenue, S.E. EastBuilding GroundFloor, Room E12- 320 Washington, D.C. 20590 {FederalExpress}


### Federal AviationAdministration 800 Independence Avenue SW Washington, DC 20591 Attn: HearingDocketClerk, AGC-430 Wilbur WrightBuilding- Suite 2W1000 {Federal Express}


### James Archier, Esq. Federal AviationAdministration Office ofthe Regional Counsel, ASW-7 260I MeachamBoulevard, Suite 6E FortWorth, TX76137{FederalExpress}



### CAITLIN M. 

### MILLER

4 FAA Case No. 2011SW700189/FAA DocketNo. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S REQUEST FORJUDICIAL NOTICE

### U.S. DEPARTMENT OF TRANSPORTATION FEDERALAVIATION ADMINISTRATION National Policy

SUBJ: FAA Compliance and Enforcement Program 

## ORDER 

## 2150.38
I Effective Date: 

### 10/01/07

This order contains policies, procedures, and guidelines for the Federal Aviation Administration's compliance and enforcement program. The order also articulates the FAA's philosophy for using various remedies, including education, corrective action, informal action, remedial training, administrative action, and legal enforcement action, to address noncompliance with statutory and regulatory requirements enforced by the FAA. It provides for the public a written statement ofthe Administrator's policy guidance for imposing sanctions for violations ofsuch requirements.
The order is used at all levels by agency personnel who are engaged in the investigation, reporting, and processing ofenforcement actions. Itappliesto all offices with regulatory responsibilities.
This revision ofthe order comprehensively updates policies, procedures, guidance, and assignments of responsibility. Itreorganizes the order in a manner more useful for agency personnel and is available electronically to agency personnel and the public. The revision amends agency sanction guidance to conform to statutory changes resulting from Vision IOOCentury ofAviation Reauthorization Act and incorporates guidance into the agency's compliance and enforcement program order on policies and programs that have developed since the last comprehensive order revision in 1988. Those include policies relating to the FAA's exercise ofits authority to administratively assess civil penalties and guidance onthe agency's voluntary safety programs. A workgroup of agency personnel from the field and headquarters with extensive experience in statutory and regulatory enforcement reviewed the agency's policies and programs in this area to producethis comprehensiverevisionofthe agency order on its compliance and enforcementprogram.

Distribution: A-W-l;A-W (AT/PS/SM)-2;A-W (PP/AM/SF/ 

### GCIFSIIA!VS)-3;A-XYZ (AT/AF/CS)-2;Z-X (AS/AM/GC/FS)-3; A-Y (AM/ARlGC)-3;A-Z (AM/AN/GC)-3;A-FAC/FACIFCS-O; A-F AF/FA T/FIA-O(L TD);ZFS-325 

# RECEI
MAY 1**~~** 

# HEA.AI

InitiatedBy: AGC-30010/01/07

1. Background. Appendix C. Sanction Guidance HazardousMaterialsEnforcement 2150.3B

a. Legislation. Congress determined thatthe unregulatedtransportation ofhazardous materials constitutes athreatto public safety in all forms oftransportation. Congress addressed thatthreat in 1974 by enactingthe HazardousMaterials TransportationAct (HMTA). By 1990, Congress determined that effective enforcementofthe HMT A required more severe action, and enactedthe Hazardous MaterialsTransportation Uniform Safety Actof 1990, Public LawNo. 101-615, 1990 U.S. Code Congress. & Admin. News 104 Stat. 4605. Theprimary effect ofthis 1990 revision ofthe HMTA wasto raisethe maximumcivilpenalty for violation ofany regulation enactedunderthe HMTAto $25,000, and, for thefirst time, to require a $250 minimumpenalty for any such violation. The HMTAwasrecodified in 1994 and is nowreferred to as the "Federal hazardous material transportationlaw," 1994U.S. Code Congress. & Admin. News 108 Stat. 759, codified at 49 U.S.C. §§ 5101-5127. Inthe 1994 recodification, Congress specifically statedthatthe recodification createdno substantive changeto the earlierform ofthe statute. In2005, the Congress enacted and the President signedthe Safe, Accountable, Flexible, EfficientTransportationEquityAct: A Legacyfor Users (SAFETEA- LU), Public Law 109-59, August I0, 2005. Thatlegislation, among otherthings, modifiedthe limitations on civil penaltiesthatmay be assessed for violations ofthe hazardous materials statute and regulations.
b. CivilPenalties. The Federal Civil Penalties Inflation AdjustmentActof 1990, 28 U.S.C. §2461 (note), as amended by the DebtCollectionImprovementAct of 1996, PublicLaw I04-134, April 26, 1996, provides a mechanism for adjustments for monetary civil penalties for inflation in orderto maintainthe deterrenteffect ofmonetary civilpenalties and promote compliancewiththe law. Underthe statute, the adjusted civilpenaltymaximums cannotbe appliedunlessthey are implemented byregulation. The adjustedcivilpenalties are listed in part 13 ofTitle 14 ofthe CFR, subpartH.
Pursuantto SAFETEA- LU,the maximum civilpenaltythatmaybe assessed for aviolation ofthe Federal hazardous material lawor ahazardous material regulation is now $50,000; the minimumcivilpenalty is now $250. There are two exceptionsto those limits. A maximum civil penalty of$100,000 may be assessed ifthe violation results in death, serious illness, or severe injury to any person, or substantial destruction ofproperty. The minimum civilpenaltythat may be assessed for a training violation is $450.

c. EnforcementResponsibility. Within the DepartmentofTransportation, the Pipeline & Hazardous Materials Safety ProgramsAdministration (PHMSA), createdbythe NormanY. MinetaResearch and Special ProgramsImprovementAct in 2004, adopts the Hazardous Materials Regulations (HMR), which govern the transportation ofhazardous materials (hazmat). The FAA, under delegated authority, enforcesthe Federal hazardous materialtransportation law andthe HMR, with particularemphasis on shipmentofhazmatby air. 49 C.F.R. 

### § 1.470).

C-110/01/07 2150.38

d. Violation ofthe HMRs. The HMRsetforth regulations for thetransportation ofhazmat. A knowing violation ofthe statute or oftheHMRcan supportthe assessment ofa civilpenalty between $250 and $100,000. A person acts knowingly whenthe person has actual knowledge of the facts giving rise to the violation; or a reasonable person acting in the circumstances and exercising reasonable carewouldhave thatknowledge. 49 U.S.C. §5123(a)(l)(A). Thecivil penalties authorizedunderthe statute apply to each violation ofanyregulation setforth in the HMR; they also apply to the violation ofan order, special permit, orapproval issued bythe Department. Moreover, underthe statute, eachcontinuingviolation ofthe HMRcan constitute a separate violationfor each day aviolationcontinues. In section 5124 ofthe statute, Congress prescribed criminalpenalties for awillful violation ofthe Federal hazardous material transportation law or the HMR; willful violationsrequire evidence ofbothknowledge ofthe laws and regulations and intentto violatethem.

e. Investigative and EnforcementProcedures. Part 13 ofthe FederalAviation Regulations -Investigative and EnforcementProcedures (14 C.F.R. part 13) governs the procedures applicable to enforcementofthe HMRby the FAA. Hazmatviolations occurring on or after August 2, 1990, may be dismissedby an administrative lawjudge (ALI) ifa notice of proposed civil penaltyhas notbeen issued within 2years ofthe violation, unless goodcausefor delay has been shown. 14 C.F.R. § 13.208(d).
2. Consideration ofStatutory Criteria. As a general matter, a sanction should be imposed that is sufficiently deterrentbutnot excessive, in orderto comply with the underlyingpurposes ofthe Federal hazardous materialtransportation law and HMR. In determiningthe sanctionto be assessed, penalty criteria setforth in 49 U.S.C. 

### §5123 mustbe considered. These criteria are the nature, circumstances, extent, and gravity ofthe violation; the degree ofculpability ofthe violator; the history ofpastviolations (ifany); the ability to pay; the effect on the ability to continue to do business; and othermatters asjusticerequires. Some ofthese considerations already are factored to some extentinto the categories inthe HazardousMaterial Sanction Guidance Matrix. The statutory factors are further considered under the weighting analysis that is performedto indicate the amount ofthe civil penalty within the appropriate range, i.e., atthe minimum, moderate, or maximumportion ofthe sanctionrange. The Matrix recognizes that an even higherpenalty could be warrantedfor a significantly aggravated case, consistentwith the increased maximumpenalty of$50,000 imposed by SAFETEA-LU. In addition, the Matrix reflects the potential $100,000penalty, also imposedby SAFETEA-LU, for a violationthat results in death, serious illness, or severe injuryto any person, or substantial destruction of property. 3. ConsistencyofPenaltySanctions. The Hazardous Materials SanctionGuidance is designed to promote better consistency so that similarpenalties are imposed in similarcases. The specified Matrixranges (e.g., $250-$550, or $15,000-$32,500) are intended to reflectthe nature, circumstances, extent, and gravity ofthe case as compared with othertypes ofcases. Each case, however, must be evaluated on its own facts. A sanctionmay differ from the specified Matrix ranges whenthe facts and circumstances ofa case supporteither a greater or lesserpenalty. When a special agent believesthat apenalty should exceed the specified Matrix ranges, the agent should consultwith legal counselbefore further processing ofthe EnforcementInvestigative Report (EIR). This consultation is notnecessary inthe case ofarecommendedpenaltythat is

C-210/01/07 2150.38

lessthanthatprovided in the Matrix. In either situation,the basis forthe decision to go outside the ranges should be explained in detail.
4. Part 175 Violations. Violations ofpart 175 ofthe HMR, which establishparticular requirementsfor air carriers and other aircraft operators, are contained in a separate matrix. However, such operators often offerhazardous materialsfor airtransportation, as well as accept and transportthem. Forthis reason, such operators may be liable for violations both as a business entity within the Hazardous Materials SanctionGuidance Matrix, as well as for specific air carrierviolations.

5. Violation Committed by SmallBusiness Entity. To meet statistics-gatheringrequirements, the investigating special agent must determine whetherthe alleged violator qualifies as a small business concernunderthe Small BusinessRegulatoryEnforcementFairness Actof 1996 (SBREFA). Foran extensive discussion ofhowto make that determination, see Part OneAbbreviations andDefinitions, in AppendixB ofthis order. Ifinvestigating special agents are unableto obtain independently informationto determine whether an allegedviolator is a small business concern, they request such information inthe letter ofinvestigation. See sample letter ofinvestigation in FigureA-1 ofAppendixA. Because violations ofTitle49 ofthe U.S. Code and the HMR may be committed by entities in addition to those normally regulated by the FAA, the investigating agent may need to referto the SEA's complete table ofsize standardsto find the correct size limit for an alleged violator.

a. EnforcementPolicy under SBREFA. Chapter7, Paragraph 10, ofthis order generally outlinesthe FAA'senforcementpolicy under SBREFA. In determiningwhether and howto provide for the reduction or waiver ofcivil penalties for statutory orregulatory violations by small entities, the FAA'spolicy may contain certain conditions. Those conditions may allow for excluding from such areduction orwaiver: a small entity thathas been subjectto multiple enforcementactions by the agency, aviolation involving willful orcriminal conduct, aviolation thatresults whenthere has notbeen a good faith attemptto complywiththe requirements, and a violationthatposes a serioushealth, safety orenvironmentalthreat. With respectto air carriers and other aircraftoperators,the FAA takes into considerationcompany size in determiningthe appropriate amountofcivilpenalty. See the Matrix, Figure C-1, below.
b. Information Sheetfor Complaints by Small Business Concerns. EachFAA employee who conducts an inspection ofa small business concernthatis regulated bythe FAA provides the small business concern with an information sheet. The information sheetinforms thatentity that it may submitcomplaints or comments regardingunfairFAAregulatory enforcementto the National Ombudsman. FAA special agents may obtain a copy ofthe information sheet for hazardous materials inspections and additional guidance for distributing it from the ASH regional offices.

c. Reduction orWaiverofPenalty. The FAA does notreduce or waive the penalty ofan alleged violator solelybecause it is a small business entity. This is because a violation ofthe hazmat statutes orHMRtypically poses a serious health, safety, orenvironmentalthreat (and may involve one ofthe otherreasons for exclusion). Accordingly,theFAA will usuallyreduce

C-310/01/07 2150.38

orwaive a penalty only ifthe small business entityprovides evidenceto demonstrate its inability to pay orthatthe proposedpenalty wouldpreventthe entity from continuing in business.
d. EnforcementActions Otherthan CivilPenalties. The FAA may, in limited circumstances, announce policies to provide for hazmat enforcement actions less onerous than civil penalties, that is, administrative actions. Suchpoliciesmay apply to small business entities or to others, and will be announced as Compliance and EnforcementBulletins in this order.
6. Use ofthe Sanction Gnidance. This guidance provides agencypersonnelwith a systematic wayto evaluate acase and arrive at an appropriatepenalty, considering all the relevant statutory criteria includingmitigating and aggravating circumstances, ifany. Statutory considerations havebeen factored into the various ranges within the Sanction Guidance Matrix. Determination ofwhere a sanction lies withinthese ranges is aided by a series ofweighting questions thatprobe the various aggravating and mitigatingfactors thatmay exist in a case.

a. WeightAnalysis. First, the weighting analysis is performed. Agencypersonnel respond to a series ofquestions to determine the aggregate weight ofthe case. The aggregate weight of the case helps determine the sanction amountfor each violation group within the established ranges oftheMatrix.
b. Determination ofSanction. Itis importantto note that determination ofwherethe sanction lieswithin the Matrixis notthe resultofamathematical computation. Evaluation ofthe case is based on the totality ofthe facts and circumstances. Generally, ifthe answerto a particular questionrepresents a more significant aspect ofa case, greater consideration should be given to that answer. Forexample, violations involving an extremely dangerous substance, even in minute quantities, might warrant apenalty atthe maximum end ofthe range oreven apenalty exceedingthe Matrixranges (ifnot already atthe statutory maximum).

c. Determination ofCategory. Underthe Sanction GuidanceMatrix, agency personnel determinethe category ofviolatorthe person falls within (jor example, business entitythat regularly offers, accepts, or transports hazmat) andthe offense category (jor example, undeclared shipmentwithinhazmat quantity limitations). The sanctionranges under the various violator categoriestake into accountthe relative culpability ofthe violator. Similarly,the offense categories address the nature, circumstances, and gravity ofthe particularoffense. After determiningthe appropriate categories and intersecting box ofthe Matrix, agency personnel then determine which subcategories ofoffenses (jor example, shippingpapers) are allegedto have beenviolated. Basedon the weighting analysis performed in subparagraphs 8.a.-e., an appropriatepenalty is assigned for each ofthe applicable violation groups. The penalty amount for each relevant violation group is addedtogether to reach the recommended sanction.
d. OtherRelevant Sanction Factors. Under subparagraph 8.g., the special agentthen considers otherrelevant factors, including evidence ofcorrective action. A recommended sanction may be reducedpriorto the issuance ofa notice ofproposedcivil penalty whenthere is adequate reliable information concerningthe corrective actions taken by arespondent. Corrective actions thatjustifyreduction ofthe recommended penalty must exceed the minimum

C-410/01/07 2150.38
legal requirements. The special agent also attempts to provide information concerningthe alleged violator's size, financial condition, and ability to pay arecommended sanction.
7. FAALegal Counsel Review. When an EIR is forwarded to legal counsel for enforcement action, counsel will give appropriate considerationto therecommended sanction. FAA legal counsel will alsoreviewthe factors, analysis, and determinations underthe HazardousMaterials SanctionGuidance. The basisfor deviatingfrom the recommended sanction, ifany, shouldbe explainedto, and discussedwith, the investigating special agent. Final determination ofthe sanction amountproposed inthe notice ofproposed civil penalty is ordinarily aproductof joint decisionmaking and approval ofthe investigating agent and the legal office.

8. FederalAviation Administration HazardousMaterials Sanction Guidance. This Sanction Guidance is divided into three sections: case analysis; utilization ofthe Sanction GuidanceMatrix (Matrix); and consideration ofother statutory factors. The Sanction Guidance Matrix is contained in Figure C-1 andthe Risk Categories are contained in Figure C-2.

a. Case Analysis (Evaluation ofStatutoryAssessmentFactors). (1) This section contains a series ofquestions to assist a special agentin evaluating a case and recommending a sanction. It also assists an attorney in evaluating a case file priorto initiation, and after additional information is received in response to anotice ofproposed civil penalty. The questions review factors involvingthe nature, circumstances, extent and gravity of the violation, the violator's degree ofculpability, and the violator'shistory ofpriorviolations. Some ofthese factors are already consideredto some extent withinthe various categories ofthe Sanction GuidanceMatrix. The questions in this sectionprovide additional consideration ofthe statutory factors and examinethe existence ofaggravating and mitigatingfactors in a case. (2) The agent answers each question in Section Iand determines ifarelative weight of minimum, moderate, ormaximum should be assigned based on the response to the question. With the exception ofQuestion (I)(a), not all questions will necessarily apply to a given fact situation. Question (l)(a) addresses the nature ofthe hazardous material(s) involved, andthe evidence will indicate the risk category and, therefore, the weight. The aggravating ormitigating factors addressed inthe otherquestions only apply to the case whenthe question receives ayes response. Questions receiving a no response do not affectthe weighting ofthe case and are not considered. Forexample, thatthe violation did notresult in injury or damage is notamitigating factor, and shouldnotresult in penalty mitigation. In many instances, the answers to mostor all ofthe questions will be no and the onlyrelevant weighting factor in this section willbe the risk category ofthematerial identified in Question (I)(a). (3) In determiningthe final aggregate weight ofthe case, the responses to each ofthe questions do nothave to be equally considered. Determination ofwhetherthe overall case shouldhave a minimum, moderate, ormaximum weightcannotbe determined with mathematical certainty. Generally, ifthe answerto a question demonstrates thatthe factor at issuerepresents a more significantaspect ofthe case, greater consideration is given to thatfactor. The final aggregate weightis based on the totality ofthe facts and circumstances ofthe case. Once

C-5

### 10/01/07 2150.3B
determined,thefinal aggregate weight is then utilizedto arrive at therecommended sanctionfor each applicable violation group onthe Sanction Guidance Matrix(See, Figure C-1).
b. The Nature, Circumstances, Extent, and Gravity oftheViolation (Factors Concerning the Shipment): (I) Whatmaterial(s) was offered, transported, or accepted for airtransportation? Figure C-2 divides hazardousmaterials ofparticularclasses, divisions, andpacking groups into three riskcategories: Category A, Category B, and Category C. Findthe material offered, transported, or accepted, in Figure C-2 and answerthe questions below.

• Ifthe material(s) is in CategoryA, assign aMa.ximum weight. • Ifthe material(s) is in CategoryB, assign aModerate weight. • Ifthe material(s) is in Category C, assign aMinimum weight.
GuidanceNote: The categories in Figure C-2 represent the inherentrisk of danger to air tramportationposedby the material. Ifthere is more than one type of hazardousmaterial involved in the shipment, use the hazardousmaterial in the highestrisk category. (2) Whatquantity ofthe material(s) was offered, transported, oracceptedfor air transportation?

• Didthepackage(s) exceedthe authorized quantity limitationsby asignificant amount? Ifyes, consideraModerate orMa.ximum weightdepending onthe degree to whichthe limitationwas exceeded.
Guidance Example: The quantity limitationfor gasoline on apassengerplane is 5 litersper package. If a violator offers 30liters ina singlepackage on apassengerplane,assign a ma.ximum weightfor thisfactor.

• Didthe package contain a forbidden material? !fyes, assign aMa.ximum weight.

• Weretheremultiplepackages inthe shipment? Ifyes, consider aModerate or Ma.ximum weight, depending onthe numberofpackages andtotal amount ofhazardous material beingtransportedin violation.
GuidanceNote: A package means a packaging plus its contents. There may be multiple packages in one shipmentoroverpack. Multiplepackages often representmultiple violations. Under the Sanction Guidance. thisfact is consideredan aggravating circumstance rather than a directmultiplierof the sanctionfor each violation. Each case, however, mustbe evaluatedon its particularfacts. A very large numberof packagesmay result in suchanegregious case that the overallweight ofthe case is so high thatapenaltybeyondthe ma.ximumpoint in the range is warranted. An investigation will occasionally revealsufficientevidence of severalshipmentsfrom the same offeroroveraperiodof severaldays, all of which involve violations of theHMR. These independentacts of offering usually are consolidated into one EIR andaddressed in one notice



### C-610/01/07 2150.38
of proposedcivilpenalty. However,forpurposes of determining the appropriate sanction, each separate shipmentwith separate airwaybill orshippingpapers, separatedestination, and/or other evidence establishing itas a separate shipment, is ordinarily consideredas a separate incidentforpurposes of applying the sanction guidance analysis. It is suggestedthat the separate shipments be treatedas individual counts in the EIR andthe noticeof proposedcivil penalty, with each counthaving its own sanction derived from application ofthis guidance. (3) Did the shipment cause some damage orharm to persons orproperty or interfere with commerce? Ifyes, consider aModerate orMaximum weight.
GuidanceNote: Thefact thatno damage occurredas a result ofthe shipmentis nota mitigating factor. However, damage or harmmay aggravate the nature, circumstances, extent, andgravity of the violation. Depending on the degree of damage causedby the shipmentand/or the existence ofotheraggravatingfactors, departurefrom the ranges may bejustified. It is important to note thatdeath, serious illness, orsevere injury to anyperson, orsubstantial destruction of property, warrants additional consideration of aggravation ofthe totalpenalty.

c. Violator'sDegreeofCulpability. The Matrix, Figure C-1, considersthe relative culpability ofthe violator. This section ofthe analysis further evaluatesthe degree ofculpability ofthe violator. (I) Is the violatorthe manufacturer ofthe hazardous material? Tfyes, consider a Maximum weight.
GuidanceNote: A manufacturer of ahazardous material is expectedto have complete knowledge ofthe nature ofthe hazardousmaterial itmanufactures or uses; thus, a highdegree of culpability willordinarily be imputedto it. (2) Did someone otherthan the violatorpreparethe shipmentfor transportation? lfyes, consider aMinimum orModerate weight.
GuidanceNote: Facts supportinganaffirmative answer to this questionmaybe cause to mitigate culpabilityand/orpursue aseparate enforcementaction againstother responsible parties who handledthe shipment. A shipper thatreships materials received from another person in the samepackaging is independently responsiblefor ensuring the shipment complies with the HMR. Nevertheless, the reshipper is generally consideredto havea lesserdegree of culpabilityfor compliance ofthepackage as received. However, 

### if the reshipper unpacks and/or repackages the shipment, the reshipper remains as culpable as the originalshipperand generally is notaccordedmitigation under this weightingfactor. (Forpurposes of this section, a "reshipper" refers to aperson, other than the originalofferor, who offersashipmentof hazardousmaterialfor transportation.) (3) Did the violatorreasonably rely on incorrect information from another source? If yes, consider aMinimum weight.

C-710/01/07 2150.38

GuidanceNote: Detrimental, reasonable reliance on anotherpartymay be a mitigatingfactor when considering the violator'sdegree ofculpability. For example, reliance onan inaccurate Material Safety Data Sheet (MSDS) wouldbe mitigating. (4) Does the violatorhave a history ofprevious HMRviolations? Ifyes, consider a Moderate orMaximum weight.
GuidanceNote: To establisha violation history, apriorviolation mustbe an actual finding of violationpursuantto a legal enforcementaction. Special agents shouldattempt to determine the corporate structure of the violatorandwhetherotherbusinessentities ornamesare orhave been usedby the entity in orderto obtaina complete violation history. The numberandage of violations shouldbe considered. Ordinarily,findings of violation more than 5 years oldcarry less weight, unless a continuingpatternof violation exists.

d. OtherFactors. (I) Each case mustbe evaluated on its particular facts. As such, many cases may present unique scenarios and aggravating ormitigatingfactors that are notroutinely seen. Ifan aggravating ormitigating circumstance exists that is not adequately addressed elsewhere in the sanction guidance, itmaybe included and assigned aweight underthis section. Thefactor should be clearly identified and explained in the analysis portion ofthe EIRand carefully scrutinizedby legal counsel.
GuidanceNote: For example, a shipmentof a singlepackage containing severaldifferent hazardousmaterialsmaypresentan aggravatingfactor. The degree of seriousness of thisfactor will increase ifthe hazardousmaterials are incompatiblewith each otherand, therefore, create an increasedrisk. Mitigatingfactors may also exist that have notbeenadequately considered. For example, a shipment containinga de minimis quantity of materialoran amountthat wouldhave qualified under the smallquantity exception of 49 C.F.R. §/73.4 maypresenta mitigatingfactor if as a result there wasa reducedrisk to safety in transportation. That the materialcouldhave been shippedas a consumercommodity can also bea mitigatingfactor.

e. DeterminetheFinalAggregateWeightofthe Case. (I) Allthe responses/weights are evaluatedto determine a final aggregate weightfor the case 

### (Minimum,Moderate, andMaximum.). Questionsreceiving a

### no response will not be included in this evaluation. To determine the final aggregate weight, the agent or attorney must exercise his or her discretion in light ofthe statutoryfactors and knowledge ofthe particular facts ofthe case. The facts ofthe particular case will dictate the relative importance ofeach of the weightingfactors in reaching the final aggregate weight. The final aggregate weight should be decided as aresult ofcareful analysis, not amathematical averaging. Itis possiblethat a single weightingfactor may outweigh all others. The agent orattorney's analysis should always be explained in this regard.

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Guidance Example: A case involving a hazardousmaterial in the lowest risk categorymay be evaluatedto have a maximum weightbecause ofthe large quantityshippedor the damage resultingfrom the shipment.
f. Utilize theMatrix (Figure C-1). (I) The sanction ranges underthe offeror and offense categories ofthe Sanction Guidance Matrixreflectthe relative culpability oftheviolator and the nature, circumstances, extent, and gravity ofcases for the majority ofviolations. Consideration oftheseparticular statutory factors underthe Federal hazardous material transportation law is builtinto the Matrix. Further analysis ofthe statutory factors is required to determinethe appropriate sanctionwithin theranges establishedunderthe Matrix. This analysis is performed in subparagraphs 8.a.-e. Afterdeterminingthe final aggregate weight ofthe case under subparagraphs 8.a.-e., thatweight is appliedto the appropriate Matrix range to identify the recommended sanction amountfor each ofthe relevantviolation groups and for the case as awhole. Althoughthe notice ofproposed civil penalty may cite numerous violations ofa particularpartor subpart ofthe HMR, unless upward departure isjustified, a single penalty amount for each violation group is ordinarily used to reach the full sanction. (2) Instructions.

• Identifythe appropriate category for thetype ofentity and the nature ofthe offense involved in the case. Referto the Definitions Sectionthat follows the Matrixin Figure C-I for guidance. Go to the intersecting box and identifythe applicable sanctionrange for each violation group.

• Applythe conclusionreached in the subparagraphs 8.a.-e. weighting analysis to assign a sanction amountwithin the minimum, moderate, or maximumportion ofthe sanction range for each relevantviolation group. The recommended civilpenalty atthis stage is the sum ofthe sanctions for each ofthe applicable violation groups. A sanction should notbe assessed for aviolation group ifthere havebeenno violations ofthatpartor subpart ofthe HMR. The sanction amount for each violation group need notbe identicalbut ordinarily is withinthe portion oftheparticular sanction range thatrepresents the overall weightofthe case. (3) Departure from the Matrix ranges. The ranges ofpenalties specified in the Matrix (e.g., $250-$550) are intended to coverthe majority ofcases involvingviolations ofthe HMR. The facts and circumstances ofa particularcase, however, mayjustify either an upward or downward departure from the specifiedMatrixranges. This sanction guidance anticipates departure from the specifiedMatrix ranges whenjustified. A case involving violations in which the nature, circumstances, extent, and gravity ofthe incident are particularly severe or egregious, mayjustifyupward departure from the specifiedranges. Ifthe investigating agentbelieves, based uponthefacts ofa case, that apenalty should exceedthe specified Matrixranges, the agent should consultwith legal counsel before further processingofthe EIR. (However, in no case maythe civil penaltyperviolation exceedthe maximum allowed by Jaw.) Conversely, the investigating agent may believe thatmitigating factorsjustify a downward departurefrom the

C-910/01/07 2150.38

Matrixrange. Consultationwith legal counsel is not necessary in the case ofa reconunended penaltythatis less than thatprovided inthe Matrix. (However, in no case maythe civilpenalty perviolation be less than the minimum allowed by law.) In either situation, however,the agent is to provide a detailed explanation ofthe basis for the decisionto go outsidetheranges. (4) Violations ofpart 175 regulations, whichestablish particularrequirements for air carriers and other aircraft operators, are contained in a separatematrix. However, such operators often offerhazmatfor airtransportation as well as acceptand transport it. As such, the operator maybe liable for violations as a business entity withinthe mainMatrix as well as for the specific part 175 violations.
g. ImpactofOther StatutoryFactors. The Federal hazardous materialtransportation law also requires consideration ofaviolator's ability to pay a civilpenalty, the impact ofthe civil penalty on the violator's ability to continueto do business, and othermattersthatjustice requires. Consideration ofthese factors mayresultin adjustment ofthe recommended civil penalty calculated in subparagraph 8.f. In situationswhere the agent or attorney is in possession ofmitigating information, such an inability to paythe recommended civil penalty orcorrective actiontaken, reduction ofthe recommendedpenaltymaybe appropriate. Mitigating information should be sufficientlyreliable, uncontroverted, and documented in orderto support reduction of the recommended civilpenalty priorto issuingthe notice ofproposed civil penalty. (1) Abilityto pay or continue in business. Historically,the FAAhas consideredthese factors afterthe issuance ofthe notice ofproposed civilpenalty due to the absence ofreliable financial information onwhichto base areduction priorto the issuance ofa notice. This Sanction Guidancerecommendsthatthe special agentmake effortsto obtain reliable information regardingthe violator's size and financial conditionfor reviewpriorto the issuance ofa notice. This information will betransmitted to the legal officefor consideration. Itis recognized that it may notalways be possible for the special agent and/or attorney to obtain reliable financial information on aparticularrespondent, thatfinancial circumstances change, and thatinformation may be provided afterthe issuance ofthe noticethat may warrantfurther consideration ofa respondent's abilityto pay.

• The investigating agentwill attemptto include financial information as an exhibit in the EIR. Itis anticipatedthatthis information, ifavailable, will be obtainedfrom reliable financial data bases. Financial documentation should include, butneed notbe limitedto, informationconcerningthe violator'scorporate structure, business address, officers, number of employees, and gross revenues.

• The investigating agentprovides a statementorcommentwith respectto the financial information obtained butordinarily does not evaluatethe financial condition ofa respondentwith respectto its ability to pay aproposed civil penalty. The investigating agent's statement shouldencompass areas like the numberofemployees, gross revenues, andnature of business ofthe violator.

• FAA legal counsel reviews the financial informationprovided in the EIR and evaluates its sufficiency andrelevanceto the reconunended civil penalty. Legal counsel may
C-1010/01/07 2150.3B

determine ifmore current information exists concerningthe financial condition ofarespondent and ifthat information substantially differs from the information available atthe time of preparation ofthe EIR. Ifthere is a basis for determiningthatthe recommended sanction is inappropriate based upon the financial information provided inthe EIR, therecommended sanction is adjustedpriorto issuance ofthenotice ofproposed civil penalty. This is a preliminary considerationofa company's ability topay. As such, pre-notice adjustment ofa recommended civil penalty does notprecludefurther consideration ofarespondent's financial claims after issuance ofthe notice. (2) Corrective Action.

• The most common othermatterthatthe FAAtakes into consideration is corrective action. Corrective actionthatresults in mitigation is remedial action that exceedsthe minimum legal requirements. Theprimary factors in determining the appropriate amount ofpenalty reduction aretheextent and timing ofthe corrective action. In otherwords, mitigationis determined onthe basis ofhow much corrective action was taken and how quickly the action wastaken. Systemic change intended to preventfuture violations shouldbe given greater consideration. Similarly, corrective action thatcommences upon the violator's first learning of the violations ordinarily is given greater creditthan corrective action that commences only after the violatorreceivesthe letter ofinvestigation orthe notice ofproposed civilpenalty. Mitigationofarecommended civil penaltybased upon corrective action shouldbe referenced in the Notice ofProposed Civil Penalty so thatthe respondent is on notice thatcredit alreadyhas been given for such action. (2) Status ofviolator as asmallbusiness entity orconcern. See subparagraphs S.a.-b. above.

C-1110/01/07

OFFENSE CATEGORIES
I. Declared Shi(!ment I. ShippingPapers 2. Labels 3. Markings 4. Packaging 5. Training 6. Ernerg. Response 7. Release into Environ. 8. Other II. UndeclaredShi(!ment Within Hazmat Quanti!Y, Limitations I. ShippingPapers 2. Labels 3. Markings 4. Packaging 5. Training 6. Emerg. Response 7. Release into Environ. 8. Other III. Undeclared Shipment Hazmat Forbidden on3 or exceeds gtylimits forl Passenger Aircraft I. ShippingPapers 2. Labels 3. Markings 4. Packaging 5. Training 6. Emerg. Response 7. Release into Environ. 8. Other IV. Undeclared Shipment Forbidden on: or exceeds g:D:: limits for2 AllAircraft I. Shipping Papers 2. Labels 3. Markings 4. Packaging 5. Training 6. Emerg. Response 7. Release into Environ. 8. Other V. Intentional or 

### MATRIX & 

### DEFINITIONS (Figure C-1)

C. Business Entity thatuses or handles A. Individual* B. Business Entity hazmat in the course ofbusiness
250-550 250-1.100 500-2,200 250-550 250-1,100 500-2,200 250-550 250-1,100 500-2,200 250-550 250-1,100 500-2,200



### ---------- 450-1,100 500-2,200 250-550 250-1,100 500-2,200 250-550 250-1,100 500-2,200 250-550 250-1,100 500-2,200

250-1,100 I,500-8,200 2,500-11,000 250-1,100 1,500-8,200 2,500-11,000 250-1,100 I,500-8,200 2,500-11,000 250-1,100 I,500-8,200 2,500-11,000



### ------------- I,500-8,200 2,500-11,000 250-1,100 I,500-8,200 2,500-11,000 250-1,100 I,500-8,200 2,500-11,000 250-1,100 1,500-8,200 2,500-11,000

500-5,500 5,000-16,200 7,500-22,000 500-5,500 5,000-16,200 7,500-22,000 500-5,500 5,000-16,200 7,500-22,000 500-5,500 5,000-16,200 7,500-22,000



### ---------- 5,000-16,200 7,500-22,000 500-5,500 5,000-16,200 7,500-22,000 500-5,500 5,000-16,200 7,500-22,000 500-5,500 5,000-16,200 7,500-22,000

500-32,500 7,500-32,500 I0,000-32,500 500-32,500 7,500-32,500 I0,000-32,500 500-32,500 7,500-32,500 10,000-32,500 500-32,500 7,500-32,500 I0,000-32,500



### ---------- 7,500-32,500 I0,000-32,500 500-32,500 7,500-32,500 10,000-32,500 500-32,500 7,500-32,500 10,000-32,500 500-32,500 7,500-32,500 10,000-32,500

CONSULT CONSULT CONSULT C-12 2150.38

D. Business Entity thatregularly offers, accepts, or transports hazmat
I,000-5,500 1,000-5,500 I,000-5,500 1,000-5,500 1,000-5,500 1,000-5,500 1,000-5,500 I,000-5,500

5,000-13,000 5,000-13,000 5,000-13,000 5,000-13,000 5,000-13,000 5,000-13,000 5,000-13,000 5,000-13,000

10,000-32,500 10,000-32,500 I0,000-32,500 10,000-32,500 10,000-32,500 I0,000-32,500 10,000-32,500 10,000-32,500

15,000-32,500 15,000-32,500 15,000-32,500 15,000-32,500 15,000-32,500 15,000-32,500 15,000-32,500 15,000-32,500

CONSULT10/01/07 2150.38

DeliberateViolation: or LEGAL- Up to LEGAL- Up to LEGAL- Upto LEGAL- Upto othersignificant 50,000 peroffense 50,000 per offense 50,000 peroffense 50,000 peroffense aggravation category may be category may be category maybe category may be assessed assessed assessed assessed VI. Violation results in CONSULT CONSULT CONSULT CONSULT death 1seriousillness2 LEGAL- Upto LEGAL- Up to LEGAL- Up to LEGAL- Upto severeinju!:,Y2or I00,000 per 100,000 per I00,000 per offense 100,000 may be substantial destruction offense category offense category category may be assessed ofnronertv may be assessed may be assessed assessed
h. *Sanctions applicableto aircarrierand commercialoperatorpassengers and crewmembers. The rangefor the total civilpenaltyto be assessed, absentmitigating or aggravating factors, is $250 (the statutory minimum)to $1,000.

E. GroupI & II F. GroupIII & IV 

### AIRCARRIERAND OTHERAIRCRAFT Air Carriers and AirCarriers and 

### OPERATORVIOLATIONS OtherAircraft OtherAircraft Operators Operators Failureto comply with Parts 171, 172, or 173 Use mainMatrix. Use main Matrix. reguirements ofthe HMRas an offeror ofhazmat. Improper acceptance ofhazmatfor airtransportation. (i.e., quantity, labeling, marking, packaging, and 5,000-32,500 2,500-16,200 shippingpapers)

See 49 C.F.R. 99175.30(a)(l)- (4) Failureto inspecthazmat shipmentproperly. I0,000-32,500 5,000-16,200

See 49 C.F.R. §9175.30(b); (c), (d), (e) Improper storage/securing ofhazmat aboard aircraft. I0,000-32,500 5,000-16,200 Failuretoprovidehazmattraining, maintainrecords of I0,000-32,500 5,000-16,200 training, ormeetminimumrequirementsfor hazmat training (49 C.F.R.). Usinguntrained/improperlytrainedhazmatpersonnel, I0,000-32,500 5,000-16,200 failure toretain hazmattraining records (49 C.F.R.) Failureto notify FAA properlyofincident/discrepancies 5,000-16,200 I,000-5,500 in hazmat shipment. Failureto provide noticeto the pilot-in-command. 5,000-16,200 1,000-5,500 OtherPart 175 violations. 5,000-16,200 1,000-5,500 Intentional, deliberate, or other significantly aggravated CONSULT CONSULTLEGAL violation. LEGAL- Up to

- Up to 50,000per 50,000 per offense category offense category maybe assessed mav be assessed Violation results in death, serious illness, severe injury, or CONSULT CONSULT LEGAL substantial destruction ofproperty. LEGAL- Upto

- Up to I00,000 per 100,000per offense category offense category may be assessed may beassessed
C-1310/01/07 2150.38

9. Definitions: Note thatthese definitions are onlyfor the purpose ofapplying the sanction guidance in this appendix.

a. Air Carrier and OtherAircraft Operator Groups (1, II, Ill,IV)- Air carriers and other aircraft operators are divided into two categories for purposes ofdetermining an appropriate sanction. These categoriestrackthe air carrier groups established in Appendix B this order. Forpurposes ofhazmat sanctionguidance, the FAA also includes other aircraft operators operating in commercethat are ofsimilar size, e.g., part 129 ForeignAir Carriers, part 125 Operators, and part91 Operators. (I) Group I is comprised ofair carriers with annual operatingrevenue of$100,000,000 or more. Other aircraft operators with annual operatingrevenue of$100,000,000 or more are included in Group Ifor hazmat sanction guidancepurposes. (2) Group II is comprised ofair carriers and other commercial operatorsthathave an annual operatingrevenue ofless than $100,000,000, and have 50 or more pilots and operate 25 ormore aircraft. Other aircraft operators ofthe same size are included in Group II for hazmat sanction guidancepurposes. (3) Group III is comprised ofair carriers and other aircraft operatorsthat do not meetthe criteriafor Group II, thatis, they have only 6to 49 pilots, or only 6to 24 aircraft. Other aircraft operators ofthe same size are included in Group III for hazmat sanction guidance purposes. (4) Group IV is comprised ofall other air carriers and commercial operators not meeting the criteriafor Groups I, II, or Ill. Other aircraft operators ofthe same size are included in Group IV for hazmat sanction guidance purposes. b. BusinessEntity. A business, corporation, partnership, Sub-S Corporation, sole proprietor, association, or any type ofcommercial entity. An individual who offers a hazmat shipment in airtransportation in the course ofhis orher self-owned businessfalls into this category. Itincludes anon-profitorganization and all otherentities defined underthe HMR's definition ofperson (49 C.F.R. § 171.8), withthe exception ofan individual (as defined below).

c. Business Entitythat Regularly Offers,Accepts, or Transports Hazardous Materials in the Course ofIts Business. A business entitythat offers hazmatwith some anticipated frequency, orpurportsto do so, regularly offers hazmat. Forexample, a catalogue companythat offers hazardous material to its customers would fall into this category, even though its actual sale or transportation ofthe hazmat is infrequent or limited. This category includes manufacturer ordistributor ofhazmatand a freight forwarder.
d. Business EntitythatUses, Handles Hazmatin the Course ofltsBusiness. This category encompassesthe businessthatutilizes hazmatin its business butdoes notoffer it for transportation on aregularbasis, as described above. For example, a manufacturer ofa nonhazmatproductthatuses hazmatin the manufacturingprocess couldfall into this category. It mustbe establishedthatthe company ordinarily does not offerthe hazmat itutilizes for transportation, and the shipment in this instance represents an isolated incident. This type of business is held to ahigher standard than the business entity thathas no regular involvement C-1410/01/07 2150.38

with hazmat. The described business entity receives the subjecthazardous material in transportation and uses it in its business; thus, it is clearly on notice ofthe hazardous nature of the material and the regulatory requirements to whichthe hazrnat is subject.

e. Declared Shipment. Forpurposes ofthis sanction guidance, a declared shipmenthas at leastone ofthe following communicative indicia---markings, labels, and/or shippingpapers that meetthe communicative requirements ofthe HMR. A packagethathas shipping papersthat declare the contents as hazardous material, but is otherwise not marked or labeled, falls into this category. Forpurposes ofthis definition, a shippingpaper is any documentto which handlers refer in the normal course oftransportation and thatcomplies with one or more ofthe communicative requirements in the HMRfor shippingpapers. Similarly, a properlymarked and labeledpackage that lacks shipping papers also falls into this category. An example ofa shipmentthat would notmeetthis definition is one wherethe offeror statesthatthe shipment containshazmat, but only in paperworkto whichthe handlers do notrefer in the normal course oftransportation.
f. Hazmat- A hazardousmaterial, as defined in 49 C.F.R. § 171.8, includes and is interchangeable with the term dangerous goods, as used inthe International Civil Aviation Organization (ICAO) Technical Instructions.
g. Individual- A hwnanwho offers a shipmentofhazardous material in his orherpersonal capacity, without any businesspurpose and not as part ofa commercial enterprise.
h. IntentionalorDeliberateViolation- A violation falls into this category whenthe offeror, acceptor, air carrier, or aircraft operatorhas knowledge ofthe requirements ofthe HMR, and willfully circumvents or attempts to circumventthose requirements. Forexample, an offeror whoplaces a properlymarked and labeled hazmat shipment alongwithproperly completed shippingpapers, into an overpackmarked asprintedmaterial, has committed an intentional or deliberate violation.
i. Undeclared Shipment- Ifa shipment does notmeetthe definition ofdeclaredshipment, it is an undeclared shipment. j. Undeclared ShipmentHazmatExceeds QuantityLimitsfor All Aircraft- An undeclared shipmentthat is offeredfor transportation onor transported on any aircraft and the quantity ofhazardous material exceedsthe limit, perpackage, for transportation on cargo aircraft, as established in the 49 C.F.R. 

### § 172.101 Table.
k. Undeclared ShipmentHazmatExceeds QuantityLimitsfor PassengerAircraft- An undeclared shipmentthat is offered for transportation on ortransported on apassenger aircraft, and the quantity ofhazardous material exceedsthe limitation, perpackage, for transportation on passenger aircraft (butnot for transportation on cargo aircraft), as establishedin the49 C.F.R. § 172.101 Table.
I. Undeclared ShipmentHazmatForbidden on All Aircraft- An undeclared shipment that is offeredfor transportation on ortransported on any aircraft andthe hazardous material is forbidden in airtransportation on cargo aircraft, as established in the 49 C.F.R. 

### § 172.101 Table. C-1510/01/07 2150.3B

m. Undeclared ShipmentHazmatForbidden on PassengerAircraft- An undeclared shipmentthat is offered for transportation on ortransported on a passenger aircraft, and the hazardous material is forbidden in air transportation onpassengeraircraft (but not in air transportation oncargo aircraft), as established in the49 C.F.R. § 172.101 Table.

n. Undeclared ShipmentWithin Hazmat QuantityLimitations. (1) Iftheundeclared shipment is offeredfortransportation onortransported on a passenger aircraft, the quantity ofhazardous material mustbe withinthe limitation, perpackage, for transportation on passenger aircraft, as established in the 49 C.F.R. § 172.101 Table. (2) Ifthe undeclared shipment is offered for transportation on acargo aircraft, but not transported, the quantity ofhazardous material mustbewithinthe limitation, per package, for transportationon passenger aircraft, as established in the 49 C.F.R. § 172.10I Table. (3) Ifthe undeclared shipmentis offeredfor transportation onand transported on a cargo aircraft, the quantity ofhazardousmaterial mustbewithinthe limitation, perpackage, for transportationon cargo aircraft, as established in the 49 C.F.R. § 172.10I Table.
All otherundeclared shipments fitwithinthe definitions for UndeclaredShipmentHazmat Exceeds QuantityLimitsfor

..Aircraft, or UndeclaredShipmentHazmatForbidden on..Aircraft, see above.

C-1610/01/07



### CATEGORY "A" {Maximum Weight} RISK CATEGORIES (Figure C-2) 2150.3B

Category "A" materials are materials thatwhen released in the confines of an aircraft can potentially havea catastrophic effect on an aircraft's ability to continue safeflight, resulting in acrash or emergency landing causing injuryordeath to passengers and flightcrew, as well as persons on the ground. Class 1 Class 2 Class 3 Class 4 Explosives: Division 1.1, 1.2, 1.3, Compressed Gases All2.1, 2.2 with Subsidiary Risk5.1 and All2.3 PIH Zones A-D Flammable Liquids PG I, II, and (PIH) Division 4.1 Flammable Solids PG I, & (Matches) Division 4.2 Spontaneously Combustible Materials PG I (Pyrophoric) Division 4.3 Dangerous WhenWet PG I Class 5 Division 5.1 Oxidizing Liquids and Solids PG I, II, e.g., "Chemical Oxygen Generators" Division 5.2 Organic Peroxides PG II (TypeA,B,C,D) Class 6 Division 6.1 Toxic/Poisonous Materials PG I (PIH) Class 7 CargoAircraft Only Quantities on PassengerAircraft Class 8 Corrosive Material Liquid PG I and (PIH) Forbidden Materials (See 49 C.F.R. § 173.21 & ICAO Technical Instructions) Forbidden Hazmat listed in Dangerous Goods Table 49 C.F.R. § 172.101 

### CATEGORY "8" {ModerateWeight} The materials listed in Category "B" are materials that may not pose an immediate threattothesafety ofaflight, but can cause death or injuryto persons dueto unintended releases in aircraft cabin areas, and potential damage to aircraft structures overa longer period oftime due to undiscovered releases on aircraft structural components. Class 1 Class 3 Class 4

Class 5 Class 6 Class 7 Class 8 Division 1.4, 1.5, 1.6, All Compatibility Groups PG Ill Flammable Liquids Division 4.1 Flammable Solids PG II, Ill Division 4.2 Spontaneously Combustible Materials PG II, Ill Division 4.3 Dangerous When Wet PG II, Ill Division 5.1 Oxidizing Liquids orSolids PG Ill Division 5.2 Organic Peroxides (Type E,F,G) Division 6.1 Toxic/Poisonous Materials PG I, II (NON- PIH) Division 6.2 Infectious Substances Radioactive Materials, yellow label II, white Iabeii Liquids PG II, Ill Solids PG I, II, Ill 

### Category "C" {MinimumWeight} The materials listed in Category "C" are materials that presentthe least amount of risktothetransportation system. Class 2 Class 6 Class 7 Class 9 2.2 Nonflammable Gas Division 6.1 Toxic/Poisonous Materials PG Ill All other RAM (LSA, LTD QTY, Instruments, and Articles) Miscellaneous Dangerous Goods {ORM-D and ConsumerCommodity}

NOTE: This guidance is not intended to replace theexperiencedjudgmentofaspecial agentwho is convinced, based on the evidence and facts ofa case, thatthefailure ofan air carrier, shipper, freightforwarder, or passengerto follow established regulations has posed a riskto aviation safety. C-17

### U.S. DEPARTMENT OF TRANSPORTATION

## ~ t

# ~~-» FEDERAL AVIATION**ADMINISTRA~T~I~O=N~--~~~--~** OFFICE OF HEARINGS T 1D>"f·;vrpd

In the Matter of:
Martinaire Aviation, LLC Respondent

JUDGE GOODWIN WASHINGTON, DC**.u.~·,_~~' ~**  

### JUtl 18 RECD

# J

FAA DOCKET cro. FAA-2013-0040

## J L---,.-----

. '' FAA Case No

### 2011sid't:lf~,t~~~;-"n (Civil Pena**-~:t ~~~J.on)**  FDMS No. FAA-2013-0040



### AGENCY'S RESPONSES TO RESPONDENT'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS
Pursuant to the provisions of 14 CFR § 13.220(d), Subpart GRules of Practice in FAA Civil Penalty Actions, Judge Richard C. Goodwin's Procedural Order, dated February 5, 2013, Judge Richard C. Goodwin's Order Granting Joint Motion, dated February 26, 2013 and Rule 34 of the Federal Rules of Civil Procedure, the agency hereby responds to Respondent's request to produce as follows: Request to Produce 1.1.: Produce Complainant's case file bearing FAA Docket No. FAA-2013-0040, FAA Case No. 2011SW700189 in its entirety, including, but not limited to, items of proof, exhibits, correspondence, memoranda, and all other documents contained therein. Response to 1.1.: The releasable portions of the Enforcement Investigative Report were produced in Complainant's Motion for Protective Order dated, April 4, 2013, marked as Exhibit D. The cover page of Exhibit D is attached. Request to Produce 1.2.: Produce all documents pertaining to the allegations set forth in the Complaint in this matter. Response to 1.2: All documents pertaining to the allegations set forth in the Complaint were produced in Complainant's Motion for Protective Order dated, April 4, 2013, marked as Exhibit D. The cover page of Exhibit D is attached.

### Request to Produce 1.3.: Produce all documents which Complainant intends to utilize as exhibits at the hearing in this matter. Response to 1.3: The exhibits complainant intends to utilize at the hearing include the releasable portions of the Enforcement Investigative Report which were produced in Complainant's Motion for Protective Order dated, April 4, 2013, marked as Exhibit D. Complainant objects to all other documents made by this request because these documents are excluded by the Protective Order issued by Judge Goodwin on May 1, 2013. Request to Produce 1.4.: Produce all statements and documents pertaining to statements made to Complainant by MARTINAIRE concerning the matters alleged in the Complaint. Response to 1.4: All statements and documents pertaining to statements made to Complainant by MARTINAIRE are contained in the releasable portions of the Enforcement Investigative Report which were produced in Complainant's Motion for Protective Order dated, April 4, 2013, marked as Exhibit D. The cover page of Exhibit D is attached. Request to Produce 1.5. Produce all statements and documents pertaining to statements made to Complainant by any employees or former employees of MARTINAIRE concerning the matters alleged in the Complaint. Response to 1.5: All statements and documents pertaining to statements made to Complainant by any employees or former employees of MARTINAIRE concerning the matters alleged in the Complaint are contained the releasable portions of the Enforcement Investigative Report which were produced in Complainant's Motion for Protective Order dated, April 4, 2013, marked as Exhibit D. The cover page of Exhibit D is attached. Request to Produce 1.6.: Produce all statements and documents pertaining to statements made to Complainant by any other person, firm, or corporation, concerning the matters alleged in Complaint. Response to 1.6: All statements and documents pertaining to statements made to Complainant by any other person, firm, or corporation, concerning the matters alleged in Complaint are contained in the releasable portions of the Enforcement Investigative Report which were produced in Complainant's Motion for Protective Order dated, April 4, 2013, marked as Exhibit D.


### 2

### Complainant objects to all other documents made by this request because these documents are excluded by the Protective Order issued by Judge Goodwin on May 1, 2013. Complainant also objects on the grounds that this material includes work product because it was created in anticipation of litigation. Request to Produce 1.7.: Produce all resumes, curriculum vitae and any and all written qualifications of all persons whom Complainant expects to utilize as expert witnesses at the hearing in this matter. Response to 1.7: To date Complainant does not anticipate utilizing any expert witnesses. If this situation changes before trial, Complainant will provide the names of any expert witnesses it intends to utilize. Request to Produce 1.8.: Produce all documents pertaining to facts and opinions held by Complainant's experts acquired or developed in anticipation of litigation or for the hearing in this matter. Response to 1.8: expert witnesses. To date Complainant has not utilized any
Request to Produce 1.9.: Produce all documents reviewed by Complainant's experts in connection with the anticipated litigation or hearing in this matter. Response to 1.9 : expert witnesses. To date Complainant has not utilized any
Request to Produce 1.10.: Produce all documents generated by Complainant's experts in connection with the anticipated litigation or hearing in this matter. Response to 1.10: expert witnesses. To date Complainant has not utilized any
Request to Produce 1.11.: Produce all documents evidencing and/or pertaining to Complainant's computation of the proposed civil penalty in accordance with the Matrix set forth in FAA Order 2150.38, FAA Compliance and Enforcement Program, Appendix C, Sanction Guidance Hazardous Materials Enforcement, Figure C1. 

### Response to 1.11: requested in this Complainant released the request to produce in the
3 

### information releasable portions

### of the Enforcement Investigative Report which was produced in Complainant's Motion for Protective Order dated, April 4, 2013, marked as Exhibit D. Complainant objects to all other documents made by this request because these documents are excluded by the Protective Order issued by Judge Goodwin on May 1, 2013. Request to Produce 1.12.: Produce all Orders Assessing Civil Penalty for the following HAZMAT cases: 2012SW700081; 2011SW700155; 2011SW700182; 2011SW700093; 2010SW700184; and 2010SW700147. Response to 1.12: Attached are the Order Assessing Civil Penalties. Request to Produce 1.13.: Produce all Orders Assessing Civil Penalty issued by the Complainant's Southwest Region relating to alleged violations of 49 CFR section 175.33(a) (1) by any person, firm, corporation or other entity within the preceding ten years. Response to 1.13: See attached documents.
Request to Produce 1.14.: Produce all Orders Assessing Civil Penalty issued by the Complainant's Southwest Region relating to alleged violations of 49 CFR section 175.33(a) (1) (i) by any person, firm, corporation or other entity within the preceding ten years. Response to 1.14: See attached documents provided in response to 1.13.
Request to Produce 1.15.: Produce all Orders Assessing Civil Penalty issued by the Complainant's Southwest Region relating to alleged violations of 49 CFR section 175.33(a) (7) by any person, firm, corporation or other entity within the preceding ten years. Response to 1.15: See attached documents provided in response to 1. 13.
Request to Produce 1.16.: Produce all documents evidencing mitigating actions taken by Respondent as a result of the FAA's July 8, 2011 HAZMAT inspection at MARTINAIRE'S facilities at DFW Airport and its headquarters in Addison, Texas.
4Response to 1.16: All documents evidencing mitigating actions taken by Respondent as a result of the FAA's July 8, 2011 HAZMAT inspection at MARTINAIRE'S facilities at DFW Airport and its headquarters in Addison, Texas are contained in the releasable portions of the Enforcement Investigative Report which were produced in Complainant's Motion for Protective Order dated, April 4, 2013, marked as Exhibit D. Complainant objects to this request because these documents are excluded by the Protective Order issued by Judge Goodwin on May 1, 2013. Request to Produce 1.17.: Produce all documents supporting Complainant's contention that Notifications of Pilot-in-Cormna_n_d (NOPC) are intended to be utilized to assist first responders in the event of an aircraft mishap.
Response to 1.17: 49 CFR 175.33(c) (4) is attached.
Respectfully submitted this 17m day of June 2013.

ERIC E. ANDERSON Regional Counsel Southw



### 5

### CERTIFICATE OF SERVICE
Re: Martinaire Aviation, LLC, FAA Case No. 2011SW700189
I further certify that on this date, I have sent via Federal Express a true copy of the Agency's Responses to Respondent's First Request for Production of Documents, Agency's Responses to Respondent's First Set of Interrogatories, and Agency's Responses to Respondent's First Set of Request to Admit addressed as follows:
Mr. Michael L. Dworkin and Associates Law Offices 465 California Street, Suite 210 San Francisco, California 94104-1808 (Federal Express) 

### Telephone: (415) 421-2500 Facsimile: (415) 421-2560

June 17, 2013

6

# RESPONSE TO 1.12U.S. Deportment of Transportation Federal Aviation Administration
July 24, 2012 Southwest Region Arkansas, Louisiana. New Mexico, Oklahoma Texas

Via Federal Express
Mr. Gerald F. Murphy, Esq. Crowell 

### & Moring LLP 1001 Pennsylvania Avenue, NW Washington, DC 20004 Office of Regional Counsel, ASW-7 2601 Meacham Blvd Fort Worth, TX 76137 (817) 222-5099 (817) 222-594515092 FAX

Re: FAA Case No. 2012SW700081 (Hazardous Material)
ORDER ASSESSING CIVIL PENALTY
On June 18, 2012, the Federal Aviation Administration advised Atlantic Southeast Airlines, Inc., ("Atlantic") through a Notice of Proposed Civil Penalty that it proposed to assess a civil penalty in the amount of $88,000.00.
In order to avoid further litigation, the parties held an informal conference on July 24, 2012. The parties agreed to settle this case for $77,000.00 and Atlantic has agreed to waive any further rights of appeal. This order constitutes a finding by the Federal Aviation Administration of the facts and regulatory violations contained herein. It is determined that:
1. On or about February 16, 2012, Atlantic Southeast Airlines, Inc., ("Atlantic") offered FedEx Corporation a package containing hazardous material for transportation by air from Baton Rouge, Louisiana to Lenexa, Kansas.
2. The shipment was offered via FedEx air bill number 456321723798.
3. On November 16, 2011, Atlantic offered FedEx Corporation a package containing hazardous material for transportation by air from Baton Rouge, Louisiana to Lenexa, Kansas.
4. The shipment was offered via FedEx air bill number 456321718994.

### 5. On October 25, 2011, Atlantic offered FedEx Corporation a package containing hazardous material for transportation by air from Baton Rouge, Louisiana to Lenexa, Kansas.
6. The shipment was offered via FedEx air bill number 45632171704.
7. On October 24, 2011, Atlantic offered FedEx Corporation a package containing hazardous material for transportation by air from Baton Rouge, Louisiana to Lenexa, Kansas.
8. The shipment was offered via FedEx air bill number 456321717601.
9. Ms. Ronda Sparrow (Ntirugelegwa) prepared the shipper's declaration for dangerous goods on all the shipments described above.
10. Each shipment consisted of an oxygen generator. 11. The oxygen generators were packaged in 4G fiberboard boxes. 12. The proper shipping name for an oxygen generator is Oxygen Generator, Chemical, 5.1, UN3356, PGII.
13. Oxygen Generator, Chemical, 5.1, UN3356, PGII is classified as a hazardous material under the Department of Transportation Hazardous Material Regulations.
14. On the dates referred to above, Atlantic offered an oxygen generator in packaging that failed to meet The Flame Penetration Resistance Test specified in Appendix E to part 178.
15. On the dates referred to above, Atlantic offered an oxygen generator in packaging that failed to meet The Thermal Resistance Test specified in Appendix D to part 178.
16. On October 25, 2012, Atlantic reoffered a shipment containing an oxygen generator that was rejected by FedEx on October 24, 2012.
17. When Atlantic reoffered the package on October 25, 2012, it attempted to conceal language on a box which stated "this package is not authorized for transportation aboard aircraft".


### 2

### 18. By reason of the above, Atlantic violated the following Department of Transportation Hazardous Materials Regulations

(Title 49 

### of the Code of Federal Regulations) :

a. Section l71.2(e) (49 

### C.F.R. § 

### 171.2(e)), in that it offered hazardous material for transportation by air in commerce when the material was not properly classed, described, packaged, marked, labeled, and in a condition for shipment as required or authorized by applicable requirements of the hazardous material regulations.
b. Section 173.168 (d) (1) (i) (ii) (49 

### C. F.R. § 

### 173.168. (d) (1) (i) (ii) in that it offered hazardous material for transportation in-air-commerce in packaging that failed to conform to the requirements of either: (i) Part 178, subparts Land M, of this subchapter at the Packing Group I 

### or II 

### performance level; or (ii) The performance criteria in Air Transport Association (ATA) Specification No. 300 for a Category I 

### Shipping Container.

c. Section 173.168(d) (2) (i) (49 

### C.P.R. § 

### 173.168. (d) (2) (i)) in that it offered hazardous material for transportation in air commerce in packaging that failed to meet The Flame Penetration Resistance Test specified in Appendix E to part 178. d. Section 173.168(d) (2) (ii) (49 

### C.P.R. § 

### 173.168. (d) (2) (ii)) in that it offered hazardous material for transportation in air commerce in packaging that failed to meet The Thermal Resistance Test specified in Appendix D to part 178. NOW, THEREFORE, IT IS ORDERED, 

### pursuant to 49 

### U.S.C. § 

### 5123(a), that Atlantic be and is hereby, assessed a civil penalty of $77,000.00.


### Atlantic is hereby ordered to pay, immediately, the assessed amount by mailing or delivering a certified check, money order, or company check in the amount of $77,000.00 

### payable to the "Federal Aviation Administration" addressed to:
Federal Aviation Administration DOT/FAA MMAC AMZ-350 PO BOX 25770 Oklahoma City, Oklahoma 73125-5082 ATTN: Sonny Rogers 

### 3

### As an alternative method of payment, civil penalties may be paid with a credit card at the following website: http://www.pay.gov
The amount of civil penalty assessed in this order constitutes a debt owed to the United States. Atlantic has now exhausted its right to seek review of the validity or amount of this debt. If this debt is not paid in full within 30 days of Atlantic's receipt of this letter, the debt is delinquent.
For delinquent debts, federal regulation (49 C.F.R. § 

### 89.23) requires us to charge interest, from the date of this Order, at a fixed annual rate of 1.0%, 

### along with an administrative charge of $12 per month, representing our costs of administrative collection. Furthermore, if the full amount assessed is not paid in full within 120 days of Atlantic's receipt of this letter, we are required to assess an additional penalty at an annual rate of 2.00%, 

### accruing from the date of delinquency. Delinquent debts may be reported to consumer reporting agencies or commercial credit bureaus, which could adversely affect Atlantic's credit rating. Nonpayment of this debt may ultimately result in a referral to a collection agency, or the United States Department of Justice for enforced collection.
Upon our receipt of Atlantic's payment in the amount of $77,000.00 

### Atlantic may consider this matter closed.

ERIC E. ANDERSON Acting Regional Counsel ' SouthwesJ Region

.

# ··:~>**i~'ZlL** 

# !tAc/£cc/)
·/James ./ (817) /"/" (817) Archier, Attorney 222-5074 (Phone) 222-5945/5092 (Fax)

· ..

/ cc: FAA/MMAC Accounts Receivable


### 4CERTIFICATE OF SERVICE


### I certify that this order has been sent on July 24, 2012 by Federal Express to:
Mr. Gerald F. Murphy, Esq. Crowell & 

### Moring LLP 1001 Pennsylvania Avenue, NW Washington, DC 20004

// 7 

### By:

# -.~ ie/!.L.r'

# a>tc_/f:_t~5' Jjmes Archier oFederal Aviation Administration // Office of the Regional Counsel //. Southwest Region ./...... 2601 Meacham Blvd., Fort Worth, Texas 76137 (817) 222-5074



### 5 Dated: July 24, 2012u.s**Dsr~**..**_Jif~n:::n:** of I**ror:s~.;**·=:·rtotcm Federal Aviation Administration

202_2
Via Federal Express SouUJ·.,vest Reg;on Arkansas, Louisiana, t,J21-v r'vkxico. Oklahoma Texas

Mr. Jeffrev P. llovota Attorne:.,' General Counsel Departrnent South>:lesr 1\irlines ?_Q_ Box 36611, HDQ-4GC 2702 Love**~ield** Drive Dallas, Texas 75235-1611 Office of Regiona! Counsel, P..SW-7 2601 Meacham Blvd. Fort Worth, TX 76137 (817) 222-5099 (817) 222-59"5/5092 FA>:

'?2: Southwest Airlines Company, FAA Case No. 2011SW700155 

### ORDER ASSESSING CIVIL PENALTY
Oc February ]7, 2012, the Federal Aviation**Administ~ation** a_.j_vised Sc:uth\-Iest Airlines t-hrough an /'.,_mended Notice of Proposed Civil Penalty thac it proposed to assess a civil penalty in the amount of $42,500.
In crder to avoid further litigation, the parties agreed to sectle t}Iis case for $32,000 and**Southwes~** Airlines has agreed**~o \~aive**  any further rights of appeal. This**orde~** constitGtes a finding by the Federal .l',viatior. Administration of the facts and regulatory violations contained herein. It is determined that:
1. On or about May 25, 2011, Southwest Airlines accepted hazardous material from a ticketed passenger for air transportation ir1 commerce from Orlando, Florida to Hc.uston,**Tex~s** on Southwest Airlines flight 1104.

L. The shipment consisted of a battery powered wheel cl1air. 7he battery powered wheel chair operated with two attached spillable batteries.
3. The battery-powered wheel chair was transported on its side.

·±.**~he lnprope~** **lcadi~q ca~sEd**  the release of**batter~'** fluid**i~**6.**Eat~e~y-Pa~ered** 

### Vetticle, hazar6**c~ass** 9, UN3171 is classi_fied as a**h~zardo~s n~ate~ial**  under the Department**Trar·:srjorta~ion Hazardo~s**  Material**Regul2tio~s** (49 C.F.R. =_7L.lC,l). cf**~t ~11**  relevant times, Southwest Airlines failed to**condu~t** a**~sual** ir1spection including removal of tte batteries of the batcery-powered wheel chair. 

### S. At all relevant times, Southwest the batteries of the battery-powered batteries in an upward position. Airlines failed to store wheel chair with spillab:e

9. By reason of the**~bove,** Southwest Airlines violated the following Departmer1t of Transportation Hazardous Materials**Requla~i0ns** (Title 49 of the Code of Federal Regulations):

a. Section 171.2 (f) (49 C.F.R. § 171.2 (f)), i.n that Southv1est Airlines accepted hazardous material for transportation in air commerce <.-Jithout exercising reasonable care by performing an inspection of the hazardous material.
b. Sectioc 175.10(a) (16) (49 C.F.R. § 175.10. (a) (16)), in that Southwest Airlines accepted hazardous material for transportation in air commerce**~·Ji**thout conducting a visual**~nspection** including removing the batteries of a wheelchair.

c. Section 175.88(b) (49 C.E'.R. § 175.83.(b))), in that Southwest Airlines accepted hazardous material for transportation in air commerce of a package without orientation markings containing liquid hazardous materials without storing and loading the top closures in an upward position. NOW, THEREFORE, IT IS ORDERED, pursuant to 49 D.S.C. § 5123(a), that Southwest Airlines be and is hereby, assessed a civil penalty of $32,000.00.**South~;vest ~-irlines**  is hereby ordered to pay, imrr.ediately, the assessed amount by mailing or delivering a certified check, money order, or company check in the amount of $32,000.00 payable to the ''Federal Aviation Administration'' addressed to:

2Federal Aviation Administration DOT/FAA MMAC AMZ-350 PO BOX 25770 Oklahoma City, Oklahoma 73125-5082 ATTN: Sonny Rogers
As an**~lternative** method of paymertt, civil pen<ies may be pai6**~ith** a credit card**a~** the**fol]_owi~g** website:**http://ww~1.pay.gov** The**3~ount** of civil penalty assessed in this order**cons~itutes** a debt owed tc**~he** United Staces. Southwest Airlines has now ezhausted its ric;rht to seek review of the validity or amount of this debt. If this debt is not paid in full within 30 days or SGJthwest Airlines' receipr of this letter, the debt is delinquent.
For delinquent debts, federal regulation (49 C.F.R. § 89.23) requires us to charge interest, from the date of this Order, at a fixed annual rate of 1.0%, along with an administrative charge of $12 per month, representing our costs of administrative collection. Furthermore, if the full amount assessed is not paid in full within 120 days of Southwest Airlines' receipt of this letter, we are required to assess an addirional penalty at an annual rate of 2.00%, accruing from the dare of delinquency. Delinquent debts may be reported to consumer reporting agencies or cocnmercial credit bureaus, 1-1hich could adversely affect Southwest Airlines' credit rating. Nonpayment of this debt may**ulti~ately** result in a referral to a collection agency, or the United States Department of Justice for enforced collection.

3E",=c E:, PJ.:DC:E20l' 

### Acting**Regiona~** 

### Counsel S;:_,uth 1:;est Eegion 

# (/**~cc:** FAA/MMAC Accounts Receivable

4CERTIFICATE OF SERVICE r::'.c::rtify**~ha·:** Lhis order r:as be-2n sect**o~** J·,Jne =-_g, 2012 by Federal Exprsss ro:**~r. Jef~~ey**  P.**l1ovct~** 1\ttorne:-:/**Ge~teral** Counsel Department Southwest Airlines ?.0. Box 36611, HDQ-4GC 2702 Love Field Drive Dallas, Texas- 75235-16±1

ederal Aviation Administration Office of the Regional Counsel So·.JthvJest Regier. 2601 Meacham Blvd., ?ort Worth, Texas 76l93-0007 (817) 222-5074 Dated: June 19, 2012

5Federal Aviation Administration

JaCU2Ij/ 24, 2012
Via Federal Express SouU1':18Sl Region Arkar1sas, Louisi3na, New klexico, Oklahoma Texas**~r.** Michael R. Atadika Atadika &**A~adika** Altorneys ar1d Counselors at Law Linsoln Sui2_ding 

### CCI East 

### 42'" Street New York, New York 10165 Office of Regional Counsel,**~~SW-7** 2601 f\..·1eacharn Bhrd Fort \.1\lorth, TX 76137 (817) 222-5099 (817) 222-5945/5092 FAX

Fe: Ethiopian Airlines, FAA Case No. 2011SW700182 

### ORDER ASSESSING CIVIL PENALTY
On Nove•nber 10, 2011, the Federal Aviation F,dministration advised Etl1iopian Airlines through a Notice of Proposed Civil ?enalty that ic proposed to assess a civil penalty in the amount of $195,000. On January 24, 

### 2012, the Federal Aviation Administration advised Ethiopian Airlines through a Final Notice cf**~reposed** Civil Penalty that it proposed to assess a civil penalty in the amount of $195,000.
In order avoid further litigation, the parties have agreed to settle this case for $160,000 and Ethiopian Airlines has agreed to waive any further rights of appeal. This order constitutes a finding by the Federal Aviation Administration of the facts and regulatory violations contained herein. It is jetermined that:
l. On or about June 14, 

### 2011, Ethiopian Airlines knowingly offered hazardous material to DHL Express for transportation by air from Addis Ababa, Ethiopia to Dallas, Texas.

.:__.. The I:Jith an shipment consisted of a passenger undeclared oxygen generator. service unit assembly

3. The passenger service unit assembly with an undeclared oxygen generator was contained inside of one wooden box with me-cal framing.·i. ;.;'J i_t]enti.fi

### cc_tion**rc:.~rY:iL,JS ·~i2:'**  

### labsls ·,1ers C.L: the 

### e:zterior of

Oxyqen**Ge~:eratcr,** Cheoical 

### is classified as**rt~3~er~al** under the Department of Transportation H3Ucr"-al Regulations (49 C.F.R. § 172.101). a ha.zardous Hazardous

o. 

### Tt0 pror,er shipping name for an unspent oxygen generator is 

### ''Oxygen generator, chemical''. It**~s** in DOT Hazard 

### Division 5.1. It**r~as** an identification nurnber of UN3356, and 

### is in 

### packing group II. Its prope:c labels are OXIDIZER and CARGO AIRCRAFT ONLY.
7. Ethiopia Airlines sent the shipment from Addis Ababa; Ethiopia to Dallas, Texas via DHL Express air waybill number 1304455353.
8. The consignee was Boeing Dallas Service Center, 2750 Regent Blvd., DFW Airport, Texas 75261.
9. At aJ] times mentioned herein, the shipment was not accompanied by hazardous materials shipping papers.
JO. At all times mentioned herein, the shipment was not packaged in specification packaging, did not contain markings or labels to identify the contents or handling precautions. Further, there was no evidence that the packaging had been approved for transporting an oxygen generator.
ll. At all times mentioned herein, the shipment was not properly marked 'Jit:h the appropriate approval authorization number on the outside of the package.
12. The Ethiopian Airline's HAZKl\T employee who offered the shipment for transportation 

### by air was not provided with the training required by subpart H of Part 172 of the hazardous ma;:erial regulations.
13. At all ;:imes mentioned herein, the shipment was not properly classed, 

### described, packaged, 

### marked, labeled, and 

### in a condition for shipment as required or authorized by applicable requirements of the hazardous material regulations or an e:zen·,ption or special permit, approval, or registration issued under the hazardo11S**mate~ial** regulations.
14. At all times mentioned herein, Ethiopian 

### Airlines offered 

### an oxygen generator for shiprr.ent**b~/** air and failed to: (1) ensure


### 2with**t~e** conditions of the**~pprov~l;** (2)**~~ir.t~in** a co9y of tl1e apprcval at each**facilit~·** where the**chc~ical ~~yge~**  generator**~s** packaged; and (3) mark ._r-, 0**EcpprO'~faJ** number on**t~1e C'~lt_side**  of the package.
15. E:thiopian**Air~i~es offe~ed**  hazardous material for shipment by air and**fai~ed** to**i~clude** in**t~c** shipping papers an emergency response telephone**rumbe~** or the**ide~tj_ty** of the person (by name c;r contract**nur:~.ber) ~;"Tho**  has a cor:tractual agreement HitJ1 the service provider, as prescribed in subpart G of Part 172.
16. Ethiopian Airlines offered the above-described shipment of hazardous material for transportation by air Hhen the shipping papers did not include: (a) the identification number prescribed for the material; (b) the proper shipping name prescribed for the material; (c) the hazard class or division number prescribed for the material; (d) the packing group, in Roman numerals, prescribed for the material; and; (e) the total net mass per package or gross mass per package; (f) total quantity of hazardous material;

(g) the number and type of packages comprising the shipment of hazardous materials;
17. Ethiopian Airlines offered hazardous material for transportation by air and failed to provide a statement on the shipping paper that the shipment was within the limitations prescribed for either passenger and cargo aircraft or cargo**aircra£~** only.
l6. Ethiopian Airlines offered hazardous material for transportation by air and failed to certify by printed sertification, in the**man~er** allowed 

### by 49 C.F.R. §§ 172.204(a) (1) or 172.204(a) (2) or§ l72.204(c) (1) that the**~a~erial** was offered for transportation in accordance with the hazardous material regulations.


### 3t_ 2:::"3-nsporta t:_j_ or: alr and failed to provi6e two copies of the certificatioG showing**ti1~t** the materials were in accordance with the certiLcaticc sec forth i't § 172.204 (a) (1), (2) or § 1)2.204 (c) (1) o' the hac.a:cdous material regulations.
20.**E~!"-tiopian** T:cirlines offered hazardous material for transportation by air and failed to add to the certification**r2q~irEd** ln this**sectio~ t~e**  following statement: ''I declare tt3t all of the applicable air transport requirements have been met."
21. Ethiopian Airl.ines offered hazardous material for transportation by air and failed to obtain the certifications required by (a) or (c) of this section which require legibly signed certification by a principal, officer, partner, or ernplOj'ee of the shipper or his agent.
22. Ethiopi2n Airlines offered hazardous material for transportation by air failed to mark the package with the proper shipping name and identification number (preceded by "UN", "NA" or 

### ''ID," as appropriate) for the material as shown in the§ 172.101 Table.
23. Ethiopian Airlines offered hazardous material for shipment by air and failed to label the package or containment device with the label specified in Section 172.101 Table and Subpart E of the hazardous material regulations.
24. Ethiopian Airlines offered hazardous material for shipment by air which was authorized on cargo aircraft only failed to label the package with a CAEGO IUECEAFT ONLY label specified in section 172.488 of subpart E (Labeling) of the HME.
25. Ethiopian Airlines offered hazardous material for shipment by air and failed to make emergency response information immediately available for use at all times the hazardous material was**prese~t.** Lb. Ethiopian Airlines offered hazardous material for shipment by air offered hazardous material for transportation by air and failed to make emergency response information, including emergency response telephone number, required by this subpart immediately available to any person who, as a representative of a Federal, State, or local government agency, responds to an

4**~r1c~d~n~ ~vaJ~i~g**  a**~~=~rdc~3 b~~er~a~,**  or is conductinq an**inves~iqation whic~** **ir~v~lves** 6 hazardous n1aterial.
27. ht all tises**~c~L~cned tte~ein,**  Ethiopian Airlines offered the above-described shipment of hazardous materials**fo~** transportation by air, without providing an emergency response**i~formation confo~~ing**  to Subpart G, 24-hour emergency telephone nurrtber and er:te::=-qerlcy response inforrr.a.tion complying**~·Jith** section 172. 61J2 (a) (1)- ("!).
28. Ethiopian Airlines offered hazardous material for rransportarion by air and failed to provide emergency response infcrmati_on**i;;,,-nediatc::l~y'** available for use avJay from the package containing the hazardous material.
29. Ethiopian Airlines offered hazardous material for transportation by air when emerger1cy response information was not presented on a shipping paper, in a document other than the shipping paper, related to the information on a shipping paper, a written notification to pilot in command, or a dangerous cargo manjfest, in a separate document.
30. Ethiopian Airlines failed to provide an emergency response telephone number (including area code) for use in the event of an emergency involving hazardous material that is monitored at all times that the material is in transportation, including storage incidental ro transportation.
31. Ethiopian Airlines offered hazardous material for transportation by air and failed to provide an emergency response telephone number of a person knowledgeable of the hazardous material being shipped and who has comprehensive emergency response and incident mitigation information for that material, or has immediate access to a person possessing such knowledge and information.
32. Ethiopian Airlines offered hazardous material for transportation by air and failed to provide an emergency response telephone nur,.ber, for use in the event of an emergency involving the hazardous material, and entered on a shipping paper immediately following the description of the hazardous material required by subpart C of this part, or entered once on the shipping paper .in a clearly visible location.
33. Ethiopian Airlines offered hazardous material for transprntation by air and failed to train each HAZt'!AT employee.

5**~4. E~~JOplan**  

### Airlir1es**o~~ered** t1azardous 

### material for**tc:~--~spor~ation** l=<l a.ir snd faiJ sd to class .3.nd describe the 

### hazardous material**~.n** 

### acccrdar1,:2 with parts 172 and 173 of 

### Sebpart B, ?reparation**r~** Eazardous Materials 

### for Transportatiort.**~_:::,. B~·**  r_-ec:=:::::Jr: af r;-L2 foreqoinq fc.cts anci circumstance:::,**Et~iopian_Airlines** violated the following sections of the**Depa~tment** 8f Transportation Hazardous Materials Regulations (49 C.F.R.**~** 171 

### et.seq.

a. Section 171.2(e) (49 C.F.R. § 17l.2(e)), in that it offered hazardous material for transportation in commerce when the rnaterial was nor properly classed, described, packaged, marked, labeled, and in a condition for shipment as required or authorized by applicable requirements of the hazardous material**~egula~ions** or an exernption or special permit, approval, or registration issued under the hazardous material regulations.
b. Section 172.102(c) (1), (49 C.F.R. § 172.102(c)) Special Provision 60, which states each person who offers a chemical oxygen generator for transportation after September 30, 1997, shall: (1) ensure that it is offered in conformance with the conditions of the approval; (2) maintain a copy of the approval at each faciliry where the chemical oxygen generator is**pacKag~:=d;** and (3) mark the approval number on the outside of the package.

c. Section l72.200(a), (49 C.F.R. § 172.200(a)) which requ1res that each person who offers a hazardous material for transportation shall describe the hazardous material on shipping papers in the manner required by Subpart C of Part 172 of the HMR (Shipping Papers).


### d. requires Section 172.20l(d), that each person who (49 C.F.R. § 172.201(d)) which offers hazardous material for transportation must include in shipping papers an emergency response telephone number and if utilizing an emergency response informat.ion telephone number service provider, identify the person (by name or contract number) who has a contractual agreement with the service provider, as prescribed in subpart G of Part 172.

e. Section 172.202(2) (1.), ((49 C.F.R. § 172.202(a) (1)) in that it offered hazardous material for transportation in air commerce**~'"'hen** the required hazardous material description on the shipping papers did not include the identification number



### 6p:::=-esc::ci.t)ed for**~~lc:::: rr.a-cerl_~-**  cs ::::.hC)';-.Tn in '=:oluEm 4 of the § l72 .l:Jl Tacle. 

### Secc:c_on 172.202(a) (2), (49 C.F.P. § 172.202(a) (2)) ln that**l~** offered hazardous material for transportation in air com-'uerce \·..rhe:; -the required hazardous material description on the**shi~ping** papers did not include the proper shipping**~arne** 

### prescribed for the**rnater~al** 

### in Column 2 of the § 172.101 Table.



### r;. Section 172.202(a) (3), (49 C.F.P. § 172.202(a) (3)) in that it offered hazardous material for transportation in air comroerce when the required shipping papers did not include the hazard class or division number prescribed for the material, as shown in Column (3) in**~the** 

### Eazardous Haterials Table, referenced in section 172.101.
h. Section 172.202(a) (4) (49 C.F.P. § l72.202(a) (4)) in that it offered hazardous material for transportation in air 

### commerce c·:hen the required shipping papers did not include the Packing Group, in Roman numerals, prescribed for the material in Column 5 of the§ 172.101 Table.

l. 

### Section 172.202(a) (6) (49 C.F.R. § 

### 172.202(a) (6)) in that it offered hazardous material for transportation in air commerce and failed to describe on the shipping papers the total net mass per package, unless a gross mass is indicated in 

### Columns (91\) or (98) of the§ 172.101 Table in which case the total gross mass per package must be shown; or for class 7 materials, the quantity of radioactive material must be shown by activity. j. 

### Section 172.202(a) (7) (49 C.F.P. § 172.202(a) (7)) in that it offered hazardous material for transportation in air commerce and failed to describe on the shipping papers the number and type of packages by description of the package.



### ce. Section l72.203(f), (49 C.F.P. § 

### l72.203(f)) cvhich states that a statement indicating that the shipment was within the li1nitations prescribed for either passenger and cargo aircraft or cargo aircraft only must be entered on the shipping papers. l. Section 172.204 (a) (49 C.F.P. § 

### 172.204 (a)) in that it offered hazardous material for transportation by air and failed to certify by printed certification, in the manner allowed by 49 C.F.?

.. §§ 172.204(a) (l) or 172.204(a) (2) or§ 172.204(c) (1) that

7**~tle ~~terial** **~·las** 

### offered**~o~ tr6~spo~talion**  

### ln accordance with**~he** hazardous**r~aterial reg~lations.** 
tTL. Sr::c:t.ion 172.2Ci!l(c) (2)**(L~9** C.F.?'-. § 172.204(c) (2) ln**~hat** 

### J.L offered t1azardous material**~or** transportation by 

### air ,,.:he:r:_ it:: failed to**~o::::ovi.de** "L'VJO copi_es of t[1e certific.:::.tion**shc~ing t~at**  

### the**m~~erials** 

### were ir1 accordance with 

### the cecccie:ication sot forth ire 'i 

### :L72.204(a) (1) 

### (2) or§ l72.204(c) (U of the hazardous**ma~erials** regulations.



### n. Section 172.204(c) (3), (49 C.F.R. § 

### l72.204(c) (3) ln 

### that**r~** 

### offered hazardous material for transportation by air when it failed to add to tl1e certification required in this section the -follo'vVin-g-**--s~atement:** "I- declare that all of the applicable air transport requirements have been met."



### o. Section 172.204(d), (49 C.F.R. § 172.204(d)) in that it offered hazardous material for transportation by air and 

### failed to obtain tl1e certifications required by (a) or (c) of this section which require legibly signed certification by a principal, officer, partner, or employee of the shipper or his agent.
p. Section 172.300 (49 C.F.R. § 

### 172.300), which requires that each person offering a hazardous material for transportation to 

### properly mark each package, freight container, 

### and cransport vehicle containing the hazardous material in the manner required by the hazardous material regulations.
q. Section l72.30l(a) (49 C.F.R. § 

### 172.301(a)) in that it offered a hazardous material for transportation in air commerce in non-bulk packaging and failed to mark the package with the proper shipping name and identification number (preceded by ''UN'', ''NA'' or 

### ''ID," as appropriate) for the material as shown ln**~he** § 

### 172.101 Table.

r. Seccio;-: l72.400(a) (49 C.?.R. § 

### 172.400(a)) in that it offered hazardous material requiring labeling under the hazardous material regulations for transportation 

### in air 

### commerce and failed to label the package or containment device with the label specified in Section 172.101 Table and Subpart E of the hazardous material regulations



### s. Section 172.402(c), which states that each person who**cf~crs** 

### for transportation or transports by aircraft a package containing 

### a hazardous material 

### which is authorized on cargo 

### aircraft on'_y shall '-abel tho package with a CARGO AIRCRAFT ONLY

8**-~D~l sp~2ified**  in section**172.~88** of subuart 

### E (Labeling) of '::-he EUI?c

.

. 5ccctiorc 172.600 (4J C.F.B.. § 172.600)), \·Jhich requires**t~~t** each perso2 offerirg a hazardous material for**~ranspcrtaticn** to provide ar1d**~aincain** emergency response**ir~or:naticn** during transportation and at the facility where hazardous materials**a~e** loaded for transportation, stored incidental to transpoLtation or otherwise handled during any ptase of transportation.

u. Section 172.600(c) (:)) (49 C.F.B.. § 172.600(c) (1)) ln that it offered hazardous material for transportation by air and failed to make emergency response inforli1ation immedia-te-Ly available for use at all times the hazardous material was**~Jresen**t.

v. Section l72.600(c) (2)) (49 C.F.B.. § 172.600(c) (2)) in that it offered hazardous material for transportation by air and failed to make emergency response information, including emergency response telephone number, required by this subpart immediately available to any person who, as a representative of a Federal, State, or local government agency, responds to an incident involving a t1azardous material, or is conducting an ir!ve3tigation which involves a l1azardous material.



### w. Section 172.602(a), in that it offered hazardous material for transportation by air and failed to make the following information available: (1) the basic description and technical name of the hazardous material as required by subsections 172.202 and 172.203(k), the ICAO Technical Instructions, the IMDG Code, or the TOG Regulations, as appropriate; (2) immediate hazards to health; (3) risks of fire or explosion; (4) imrr:ediate precautions to be taken in the event of an accident or ii--:cident; (5) immediate methods for handling fires; (6) initial methods for handling spills or leaks in the absence of fire; and (7) preliminary first aid measures.

x. Section l72.602(b) (2)) (49 C.F.R. § 172.602(b) (2)) in that it offered hazardous material for transportation by air and failed to provide an emergency response information irmnediately available for use away from the package containing the hazardous maC:erial.
y. Section l72.602(b) (3) (i)) (49 C.F.R. § 172.602(b) (3) (i) ln that it offered hazardous material fer shipment by air when emergency response information was not presented on a shipping


### 9**Fap~~, i~** **~** document other than the shipping paper, related to**~h~ inforrna~ion**  cr1 a shlpplng paper, a written notification to**p~ ~-c~t**  .i.n**ccJm~.-Tand.,** (Jr a clan:::rerous cargo :r:anifest, in a sepa:-ate :::1:=;c :J**nE~**nt .

z. ciectior; l72.6C4 (a) (l) I (49 C.F.R. § 172.604 (e) (l) I in**tha~** it offered hazardous material for shipment by aj_r and failed to provide an emergency response telephone number (ir1cluding aree code) for use in the event of an emergency involving hazardous material that is monitored at all times that the material is in**~ransportation,** including storage incidental to transportation.

aa. Section l72.604(a) (2)) (49 C.F.R. § 172.604(a) (21) 1n that it offered hazardous material for transportation by air and failed to provide an emergency response telephone number of a person knowledgeable of the hazardous material being shipped and who has comprehensive emergency response and incident mitigation C.nformation for that material, or has immediate access to a person possess1ng such knowledge and information.
bb. Section 172.604(a) (3)) (49 C.F.R. § l72.604(a) (3)) in that it offered hazardous material for transportation by air and failed to provide an emergency response telephone number, for use in the event of an emergency involving the hazardous material, and entered on a shipping paper immediately following the description of the hazardous material required by subpart C of this part, or entered once on the shipping paper in a clearly visible location.

cc. Section 172.702(a)) (49 C.F.R. § 172.702(a)) in that it offered hazardous material for transportation by air and failed to trein the HAZMAT employee who offered the shipment.
dd. Section 173.l(b) (19 C.F.E. § l73.l(b), 1-1hich prohibits the shipment of hazardous material by air that was not packed in packaging specified in Part 173.

ee. Section l73.22(a) (1)) (49 C.F.R. § l73.22(a) (l)) in that it offered hazardous material for shipment by air and failed to class and describe the hazardous material in accordance with parts 172 and 173 of Subpart B, Preparation of Hazardous Materials for Transportation. NOW, THEREFORE, IT IS ORDERED, pursuant to 49 U.S.C. § 5123(e), that Ethiopian Airlines be and is hereby, assessed a civil penalty of $160,000.00.

10**i~thiopi3-n** LG,i;_-lir:es is hereby or:iereci to pa:y, im_Ttediately, lllE assessed amount by mailing or delivering a certified check,**~TtC)llE'f** orcier, o.r co:r,IJany c_:heck in the amount of $160,000. 00**pa~·an~e** to tte ''Federal Aviation Administration'' addressed to: Federal Aviation Administration DOT/FAA MMAC AMZ-350 PO BOX 25770 Oklahoma City, Oklahoma 73125-5082 ATTN: Sonny Rogers**~iS** an alternarive method of payment, civil penalties may be paid with a credit card at the following website: http://www.pay.gov
The amount of civil penalty assessed in this order constitutes a debt owed to the United States. Ethiopian Airlines has now exhausted its right to seek review of the validity or amount of this debt. If this debt is not paid in full within 30 days of Ethiopian Airlines' receipt of this letter, the debt is**d~linquent.** For delinquent debts, federal regulation (49 C.F.R. § 89.23) requires us to charge interest, from the date of this Order, at a fixed annual rate of 1.0%, along with an administrative charge of $12 per month, representing our costs of administrative collection. Furthermore, if the full amount assessed is not paid in full within 120 days of Ethiopian Airlines' receipt of this letter, we are required to assess an additional penalty at an annual rate of 2.50%, accruing from the dare of delinquency. Delinquent debts may be reported to consumer reporting agencies or commercial credit bureaus, which could adversely affect Ethiopian Airlines' credit rating. Nonpayment of this debt may ultimately result in a referral to a collection agency, or the United States Department of Justice for enforced collection.



### 1 1Up8n our recei of**Ethicni~r1** AirliGes' payment in the ;s.:--:;OlHJ-c :Jf $160,000.00**E~thic~pian L~i.r:i_ines**  may consider this :r1att:.er closed.

D?.'JI[; s:JtTlJSLL Reg-=_::=;nal Cour1sel SouLh'v.Jes-t-"Region 

# ) /' / '

# 3'/'~·**~/ ~0,~D:l** **{{·t~ ~e/** 

# (

/**Jant~s Archle~,**  Attorney (8,1'1) 222-5074 (Phone) (817) 222-5945/5092 (Fax) 

## / /

cc: FAA/MMAC Accounts Receivable

CERTIFICATE OF SERVICE
I certify that this order has been sent on January 24, 2012 by Federal Express to:

By: Mr. Michael R. Atadika Atadika & Atadika Attorneys and Counselors at Law Lincoln Building 60 East 42"d Street New York, New York 10165



# - .. ;ttl**/~** Archi-e'--r----1,-L..-""'---"'-..__-'- Federal Aviation Administration Office of the Regional Counsel**Soutf'~',.,<'est** Region 2601 Meacham Blvd., Fort Worth, Texas 76193-0007 (817) 222-507':



### l2 Dated: January 

### 24, 2012U.S. Deportment u' Transportation Federal Aviation Administration Southwest Region Arkansas, Louisiana, New Mexico, Oklahoma Texas



### CERTIFIEDMAIL RETURNRECEIPT REQUESTED CynthiaA. Chandler-Snell, Esq. SeniorAttomey Regulatory Affairs Legal Department Federal Express Corporation 3620 Hacks Cross Road BuildingB, 3'd Floor Memphis, TN 38125
Re: EIR 2011SW700093 (HazMat) Office of Regional Counsel 2601 Meacham Blvd Fort Worth. TX 76137 (817) 222-5099 (817) 222-5945/5092 FAX



### ORDERASSESSING CIVIL PENALTY
On oraboutJuly 15, 2011, Federal Express Corporation (FedEx) was advised through a Notice ofProposed Civil Penaltythat the Federal Aviation Administration (FAA)proposed to assess a civilpenalty inthe amount of$32,500. On October 12, 2011 an infonnal conference was heldbetween FedEx andthe FAA following whichtheparties ultimately agreed to settlethe agency's hazardousmaterials enforcementmatterfor the sum of $24,500. THEREFORE, ithas been determined that:
1. Federal Express Corporation (FedEx), aU.S. all-cargo carrier, holds Air Carrier OperatingCertificateNo. FDEA140Awith operation specifications authorizing it to operate in air transportationunderPart 121 ofthe Federal Aviation Regulations.
2. Onor about Febmary 1, 2011, aFederal Aviation Administration (FAA) Special Agent conducted an inspection at FedEx'sfacility located at 1500WestparkDrive, Little Rock, Arkansas.
3. Duringreview ofFedEx's shippers' declaration retention file, the Special Agent discovered that FedEx accepted shipments ofhazardous materials from Environmental Services Company, Inc. for transportation in air commercewhen the shipments were not prepared for shipment in accordance with the Department ofTransportation Hazardous Materials Regulations (HMR) as follows: 

### (2,

. 

# vv-a. On or about October 18, 2010, FedEx accepted a shipment ofPotassium penmmganatcunder assigned Air Waybill 796345167105. Potassium pem1anganate is in Hazard Class 5.1 (Oxidizer) and has an assigned identification number UN1490. However, the shippingpaperimproperly identifiedthe material hazard class as 8 (Conosive material). 2

b. On or about October 18, 2010, FedEx accepted a shipment ofNitric Acid(other thanred fuming, 5% concentration) under assigned AirWaybill 794012892455. Nitric acid is in Hazard Class 8 (Conosivematerial) and has an assigned identification number UN2031. The quantity ofthc material shown on the shipping papers was 2.5 L. The shippingpapers improperly showedthe quantity ofthematerialto be within the limit allowed for transportation aboard passenger aircraft, i.e., 1L, when, in fact, the quantityofthe material exceededthelimit allowed for transportation on passenger aircraft.

c. On or about October 18,2010,FeclEx accepted a shipment ofNitric Acid (other than red fuming, 5% concentration) under assigned AirWaybill 796345436939. Nitric acid is in Hazard Class 8 (Corrosivematerial) and has an assigned identification numberUN2031. The quantityofthe material shownon the shippingpapers was 2.5 L. The shipping papers improperly showed the quantity ofthe material to bewithin the limit allowed for transp01tation aboard passenger aircraft, i.e., 1L, when, in fact, the quantityofthe matetial exceededthe limit allowed for transportationon passenger aircraft.
d. Onor about October 18,2010, FedEx accepted a shipment ofNitricAcid (other than red fuming, 5% concentration) w1der assignedAirWaybill 794012818136. Nitric acid is in Hazard Class 8 (Corrosive material) andhas an assigned identificationnumberUN2031. The quantity ofthe material shown on the shippingpapers was 2.5 L. The shipping papers improperly showed the quantity ofthematerial to bewithin the limit allowed for transportation aboardpassenger aircraft, i.e., I L, when, in fact, the quantityofthe material exceededthe limit allowed for transportation on passenger aircraft.

e. On or about October 18, 2010, FedEx accepted a shipment ofNitric Acid(other thanred fuming, 5% concentration) tmder assignedAirWaybill 794012759383. Nitric acid is inHazard Class 8 (CoiTosive material) andhas an assigned identificationnumberUN2031. The quantityofthe material shownonthe shippingpaperswas 2.5 L. The shippingpapers improperly showedthe quantity ofthe matetial to bewithin the limit allowed for transp01tation aboardpassenger aircraft, i.e., 1L, when, in fact, the quantity ofthe material exceeded thelimit allowed for transportation on passenger aircraft.
f. On or about October25, 2010, FedEx accepted a shipment ofFlammableliquid, toxic, n.o.s. (Acetone/Toluene) under assigned Air Waybill 796375297331. Flammable liquid, toxic, n.o.s. has an assigned identificationnumberUN1992.The shipping papers improperly identifiedthe number as 1993 and improperly omitted "UN"before the number. 3

g. On or about October25,2010, FedEx accepted a shipment ofFlammable liquid, toxic, n.o.s. (Acetone/Toluene) under assigned Air Waybill 796375297331. Flammableliquid, toxic, n.o.s. has an assigned identificationnumberUNl992. Flammable liquid, toxic, n.o.s. is in Hazard Class 3 (Flammable and combustible liquid) and the shippingpaperidentifiedthematerial as beinginPacking Group II. The shippingpaperimproperly failed to includethe required toxic subsidiary class ordivisionnumber (6.1) in parentheses following the primaryhazard class number.
h. On orabout October25, 2010, FedEx accepted a shipment ofFlammable liquid, toxic, n.o.s. (Acetone/Dichloromethane) under assigned AirWaybill 796375182575. Flammable liquid, toxic, n.o.s. as an assigned identification numberUN1992. The shippingpapers improperly identified the number as 1993 and improperly omitted "UN"beforethe numbers.

1. On orabout October 25, 2010,FedEx accepted a shipmentofFlammableliquid, toxic, n.o.s. (Acetone/Dichloromethane) under assigned AirWaybill 796375182575. Flammable liquid, toxic, n.o.s. has an assigned identification number UN1992. Flammableliquid, toxic, n.o.s. is inHazard Class 3 (Flammable and combustible liquid) and the shippingpaperidentifiedthe material as being in Packing Group II. The shippingpaperimproperly failed to includetherequired toxic subsidiaryclass ordivisionnumber (6.1) in parentheses following theprimaryhazard class number. Byreason ofthe foregoing, FedExviolated the following DepartmentofTransportation HazardousMaterials Regulations:

a. Section 175.3 [49 C.F.R. 

### § 175.3] in that it accepted hazardous materials for transpot1ation aboard an aircraftwhenthat material had notbeen prepared for shipment in accordance with the HMR.

b. Section 175.30(a)(l) [49 C.F.R. 

### § 175.30(a)(l)] inthatit acceptedhazardous material fortransportation aboard an aircraft and failed to ensure that the materialswere authorized and withinthe quantity limitations specified for caniage aboard an aircraft accordingto§ 172.101 ofthe HMR.

c. Sectionl75.30(a)(2) [49 C.F.R. 

### § 175.30(a)(2)] in thatit acceptedhazardous mate1ial for transportation aboard an aircraft and failed to ensure that the material was described on a shippingpaperin accordance withpart 172 oftheHMR.4
NOW, THEREFORE, IT IS ORDERED, pursuantto Section 5l23(a) ofthe federal hazardous materials transportation law, (49 U.S.C. 

### § 5123(a)), that Fed Ex be, and herebyis, assessed a civil penaltyin the amount of$24,500.
Fed Ex is directed to paythe assessed amountbymailing or delivering a certified check, money order, or company check in the amount of$24,500payable to the "FederalAviation Administration" addressedto: 

### Federal Aviation Administration Mr. Sonny Rogers, FAA/MMAC/AR, AMZ-350-SW P.O. Box 25770 Oklahoma City, OK 73125-4915
Please be sureto indicate the Case Numberon thefront ofyour check.
We also acceptpaymentbyVISAorMasterCard. Ifyou choose to make payment using the charge cardmethod, check the appropriatebox onthe attached reply form and include the cardholder's name and credit card number. Inthe altemative, you maypayyour civil penaltywith a credit card overthe Intemet. To payelectronically, visitthe web site at https://www.pay.gov. Forquestions regarding electronic payments please contact FAA Account Receivable office at 1-405-954-4719
The amount ofcivil penalty assessed in this Orderconstitutes a debt owed to the United States. Ifthis debt is not paidwithin 30 days ofFed Ex'sreceipt ofthis letter, the debt is delinquent.
Fordelinquentdebts, federal regulation (49 C.F.R. § 89.23) requires us tocharge interest, from the date ofthis Order, at a fixed aruma! rate of1.0%, alongwith an administrative charge of$12 per month, representing ourcosts ofadministrative collection. Furthermore, ifthe full amount assessed is notpaidin full within 120 days ofreceipt ofthis letter, we are requiredto assess an additional penalty at an annual rate of2.50%, accrning from the date ofdelinquency.
DAVID L. DONNELL Regional Counsel SouthwestRegion


### By ric E. Anderson Attorney 817.222.5078 817.222.5092 (FAX)

### CERTIFICATE OF SERVICE

I certify that this Order Assessing Civil Penalty has been sentthis date via certified mail, return receipt requested, to:

Marquitt, obinson Paralegal Specialist December 5, 20II Mr. Cynthia A. 

### Chandler-Snell, Esq. SeniorAttorney Regulatory Affairs Legal Affairs Federal Express Corporation 3620 Hacks Cross Road Building B, 3rd 

### Floor Memphis, TN 38125U,S, Department of Transportation Federal Aviation Administration

June 15, 2011
Via Federal Express Southwest Region Arkansas, Louisiana, New Mexico, Oklahoma Texas

Mr. Barry Brown Associate General Counsel Operations & Environment Southwest Airlines P.O. Box 36611 2702 Love Field Drive Dallas, Texas 75235-1611 Office of Regional Counsel,**ASW~7** 2601 Meacham Blvd. FortWorth, TX 76137 (817) 222-5099 (817) 222-594515092 FAX

Re: Southwest Airlines Company, FAA Case No. 2010SW700184 

### ORDER ASSESSING CIVIL PENALTY
On February 23, 2011, Southwest Airlines Company was advised through an Amended Notice of Proposed Civil that the Federal Aviation Administration proposed to assess a civil penalty in the amount of $78,000.00.
In order to avoid further litigation, the parties have agreed to settle this case for $62,000.00 and Southwest Airlines Company has agreed to waive any further rights of appeal. This order constitutes a finding by the Federal Aviation Administration of the facts and regulatory violations contained herein. It is determined that:
1. On or about June 30, 2010 Southwest Airlines Company**(~Southwestu)** offered FedEx Corporation a package containing hazardous material for transportation by air from Dallas, Texas to Loves Park, Illinois.
2. The shipment consisted of an aircraft main engine fuel control unit that contained fuel. Tag number 303273 was attached to the aircraft main engine fuel control unit. Written on this tag number 303273 was the language "NEEDS TO BE DRAINED".
3. The aircraft main engine fuel control unit was inside of a fiberboard box.4. An aircraft main engine fuel control unit that contains fuel is classified as a hazardous material under the Department of Transportation Hazardous Material Regulations (49 C.F.R. § 172.101).
5. The proper shipping name for an aircraft main engine fuel control unit that contains fuel is Dangerous Goods in Machinery. It is a hazard class 9. Its UN identification number is UN3363.
6. At all times mentioned herein, the above described box was not marked with the proper shipping name or UN identification number of the hazardous material.
7. At all times mentioned herein, the above described box was not labeled with the proper hazardous material labels, was not accompanied by a shipper's declaration of dangerous goods, shipper's certification or other proper shipping documents containing the information, including emergency response information, required by the hazardous material regulations, and was not otherwise in a condition for transportation by air as required by the hazardous material regulations.
8. The shipment was sent via FedEx "Express Saveru US air bill number 9757 0088 0799. The air bill did not identify the contents of the package.
9. The shipper was listed as Shipping Dept., SWA/0204043, 2630 Shorecrest Drive, Dallas, Texas 75235.
10. The consignee was Rocky Garst, Woodward Governor Co., Aircraft Product Service Center, 5001 North 2nd Street, Loves Park, Illinois 61111-5808.
11. The shipment was discovered leaking at the FedEx Alliance Regional Cargo Sort Center in Fort Worth, Texas.
12. Southwest offered hazardous material for transportation by air when the material was not properly classed, described, packaged, marked, labeled, and in a condition for shipment as required or authorized by applicable requirements of the hazardous material regulations.
13. Southwest offered hazardous material for transportation by air when the shipping papers did not include: (a) the identification number prescribed for the material as shown in Column (4) of the§ 172.101



### 2table; (b) the proper shipping name prescribed for the material in Column (2) of the § 172.101 table; (c) the hazard class or division number prescribed for the material, as shown in Column (3) of the § 172.101 table; (d) the packing group in Roman numerals, as designated for the hazardous material in Column (5) of the § 172.101 table; (e) the total net mass per package, must be shown unless a gross mass is indicated in Columns (9A) or (9B) of the§ 172.101 table in which case the total gross mass per package must be shown; (f) An estimate of the individual total quantities or an estimate of the individual total quantity of dangerous goods in its liquid state contained in the article. (g) the number and type of packages must be indicated.
14. Southwest offered hazardous material for transportation by air and failed to certify by printed certification, in the manner allowed by 49 C.F.R. §§ 172.204(a) (1), (2) or 172.204 (c) (1), that the material was offered for transportation in accordance with the hazardous material regulations.
15. Southwest offered hazardous material for transportation by air when it failed to provide two copies of the certification showing that the materials were in accordance with the certification set forth in § 172.204 (a) (1), (2) or § 172.204(c) (1) of the hazardous materials regulations.
16. Southwest offered hazardous material for transportation in air commerce in non-bulk packaging and failed to mark the package with the proper shipping name and identification number for its contents. 17. Southwest offered hazardous material for transportation by air and failed to label the package or containment device with the label specified in Section 172.101 (49 C.F.R. § 172.101).

318. Southwest offered hazardous material for transportation by air and failed to make emergency response information immediately available for use at all times the hazardous material was present. 19. Southwest offered hazardous material for transportation by air and failed to make emergency response information, including an emergency response telephone number, required by this subpart immediately available to any person who, as a representative of a Federal, State, or local government agency, responds to an incident involving a hazardous material, or is conducting an investigation, which involves a hazardous material.
20. Southwest offered hazardous material for transportation by air and failed to provide and maintain emergency response information that includes the minimum information set forth in this section, 172.602(a) (1-7)).
21. Southwest offered hazardous material for transportation by air and failed to provide an emergency response telephone number immediately available for use away from the package containing the hazardous material.
22. Southwest offered hazardous material for shipment by air when emergency response information was not presented on a shipping paper. 23. Southwest offered hazardous material for shipment by air and failed to provide an emergency response telephone number (including area code) for use in the event of an emergency involving hazardous material that is monitored at all times that the material is in transportation, including storage incidental to transportation.
24. Southwest offered hazardous material for shipment by air and failed to provide an emergency response telephone number of a person knowledgeable of the hazardous material being shipped and who has comprehensive emergency response and incident mitigation information for that material, or has**i~~ediate** access to a person possessing such knowledge and information.
25. Southwest offered hazardous material for transportation by air and failed to provide an emergency response telephone number, for use in the event of an emergency involving the hazardous material, and entered on a shipping paper immediately following the description of the hazardous material required by

4subpart C of this part, or entered once on the shipping paper in a clearly visible location.
26. Southwest offered hazardous material for shipment by air and failed to class and describe the hazardous material in accordance with parts 172 and 173 of Subpart B, Preparation of Hazardous Materials for Transportation.
27. Southwest offered hazardous material for shipment by air and failed to use packaging that was designed, constructed, maintained, filled, its contents so limited, and closed so that under conditions normally incident to transportation there was no identifiable release of hazardous materials to the environment.
28. By reason of the above, Southwest violated the following Department of Transportation Hazardous Materials Regulations (Title 49 of the Code of Federal Regulations):

a. Section 171.2(e) (49 C.F.R. § 171.2(e)), in that Southwest offered hazardous material for transportation by air in commerce when the material was not properly classed, described, packaged, marked, labeled, and in a condition for shipment as required or authorized by applicable requirements of the hazardous material regulations.
b. Section 172.200(a) (49 C.F.R. § 172.200(a)), which requires that each person offering a hazardous material for transportation to properly describe the hazardous material on the shipping papers.

c. Section 172.202(a) (1) (49 C.F.R. § 172.202(a) (1)) in that it offered hazardous material for transportation in air commerce when the required hazardous material description on the shipping papers did not include the identification number prescribed for the material as shown in Column 4 of the§ 172.101 Table.
d. Section 172.202(a) (2) (49 C.F.R. § 172.202(a) (2)) in that it offered hazardous material for transportation in air co&merce when the required hazardous material description on the shipping papers did not include the proper shipping name prescribed for the material in Column 2 of the§ 172.101 Table.

e. Section 172.202(a) (3) (49 C.F.R. § 172.202(a) (3)) in that it offered hazardous material for transportation in air commerce when the required shipping papers did not include the hazard class or division number prescribed for the material, as shown



### 5in Column (3) in the Hazardous Materials Table, referenced in section 172.101.
f. Section 172.202(a) (4) (49 C.F.R. § 172.202(a) (4)) in that it offered hazardous material for transportation in air commerce when the required shipping papers did not include the Packing Group, in Roman numerals, prescribed for the material in Column 5 of the § 172.101 Table.
g. Section 172.202(a) (6) (49 C.F.R. § 172.202(a) (6)) in that it offered hazardous material for transportation in air corr®erce and failed to describe on the shipping papers the total net mass per package, unless a gross_mass is indicated in Columns (9A) or (98) of the§ 172.101 Table.
h. Section 172.202 (a) (6) (iii)) (49 C.F.R. § 172.202 (a) (6) (iii)) in that it offered hazardous material for transportation in air commerce and failed to describe on the shipping papers the total net mass per package, unless a gross mass is indicated in Columns (9A) or (98) of the§ 172.101 Table.
i. Section 172.202(a) (7) (49 C.F.R. § l72.202(a) (7)) in that it offered hazardous material for transportation in air com®erce and failed to describe on the shipping papers the number and type of packages. j. Section 172.204(a) (49 C.F.R. § 172.204(a)) in that it offered hazardous material for transportation by air and failed to certify by printed certification, in the manner allowed by 49 C.F.R. §§ 172.204(a) (1) or 172.204(a) (2), or 172.204(c) (1) that the material was offered for transportation in accordance with the hazardous material regulations.
k. Section 172.204(c) (2) (49 C.F.R. § 172.204(c) (2) in that it offered hazardous material for transportation by air when it failed to provide two copies of the certification showing that the materials were in accordance with the certification set forth in§ 172.204 (a) (1), (2) or § 172.204 (c) (1) of the hazardous materials regulations.
l. Section 172.300 (49 C.F.R. § 172.300), which requires that each person offering a hazardous material for transportation to properly mark each package, freight container, and transport vehicle containing the hazardous material.

m. Section 172.301(a) (49 C.F.R. § 172.30l(a)) in that it offered a hazardous material for transportation in air corr®erce



### 6in non-bulk packaging and failed to mark the package with the proper shipping name and identification number for its contents.

n. Section 172.400(al (49 C.F.R. § 172.400(all in that it offered hazardous material requiring labeling under the hazardous material regulations for transportation in air commerce and failed to label the package or containment device with the label specified in Section 172.101 (49 C.F.R. § 172.1011.

o. Section 172.600 (49 C.F.R. § 172.60011, which requires that each person offering a hazardous material for transportation to provide and maintain emergency response information_9uring transportation and at the facility where hazardous materials are loaded for transportation, stored incidental to transportation or otherwise handled during any phase of transportation.
p. Section 172.600(cl (111 (49 C.F.R. § 172.600(cl (111 in that it offered hazardous material for transportation by air and failed to make emergency response information immediately available for use at all times the hazardous material was present.
q. Section 172.600(cl (21 I (49 C.F.R. § 172.600(cl (21 I in that it offered hazardous material for transportation by air and failed to make emergency response information, including emergency response telephone number, required by this subpart immediately available to any person who, as a representative of a Federal, State, or local government agency, responds to an incident involving a hazardous material, or is conducting an investigation which involves a hazardous material.

r. Section 172.602(al (1-71 I (49 C.F.R. § 172.602(al I in that it offered a hazardous material for transportation by air and failed to provide and maintain emergency response information that includes the minimum information set forth in this section, 172.602(al (1-711.

s. Section 172.602(bl (211 (49 C.F.R. § 172.602(bl (211 in that it offered hazardous material for transportation by air and failed to provide an emergency response telephone number immediately available for use away from the package containing the hazardous material.

t. Section 172.602(bl (31 (ill (49 C.F.R. § 172.602(bl (31 (il in that it offered hazardous material for shipment by air when

7emergency response information was not presented on a shipping paper.

u. Section 172.604(a) (1)) (49 C.F.R. § 172.604(a) (1)) in that it offered hazardous material for shipment by air and failed to provide an emergency response telephone number (including area code) for use in the event of an emergency involving hazardous material that is monitored at all times that the material is in transportation, including storage incidental to transportation.

v. Section 172.604(a) (2)) (49 C.F.R. § 172.604(a) (2)) in that it offered hazardous material for transportation by air and failed to provide an emergency response telephone number of a person knowledgeable of the hazardous material being shipped and who has comprehensive emergency response and incident mitigation information for that material, or has immediate access to a person possessing such knowledge and information.

w. Section 172.604(a) (3)) (49 C.F.R. § 172.604(a) (3)) in that it offered hazardous material for transportation by air and failed to provide an emergency response telephone number, for use in the event of an emergency involving the hazardous material, and entered on a shipping paper immediately following the description of the hazardous material required by subpart C of this part, or entered once on the shipping paper in a clearly visible location.

x. Section 173.l(b) (49 C.F.R. § 173.l(b), which prohibits the shipment of hazardous material by air that was not packed in packaging specified in Part 173.
y. Section 173.22(a) (1)) (49 C.F.R. § 173.22(a) (1)) in that it offered hazardous material for shipment by air and failed to class and describe the hazardous material in accordance with parts 172 and 173 of Subpart B, Preparation of Hazardous Materials for Transportation.

z. Section 173.24(b) (1)) (49 C.F.R. § 173.24(b) (l)) in that it offered hazardous material for shipment by air and failed to use packaging that was designed, constructed, maintained, filled, its contents so limited, and closed so that under conditions normally incident to transportation there was no identifiable release of hazardous materials to the environment. NOW, THEREFORE, IT IS ORDERED, pursuant to 49 U.S.C. § 5123(a), that Southwest be and is hereby, assessed a civil penalty of $62,000.00.

8Southwest is hereby ordered to pay, immediately, the assessed amount by mailing or delivering a certified check, money order, or company check in the amount of $62,000.00 payable to the "Federal Aviation Administration" addressed to:

Federal Aviation Administration DOT/FAA MMAC AMZ-350 PO BOX 25770 Oklahoma City, Oklahoma 73125-5082 ATTN: Sonny Rogers
As an alternative method of payment, civil penalties may be paid with a credit card at the following website: http://www.pay.gov
The amount of civil penalty assessed in this order constitutes a debt owed to the United States. Southwest has now exhausted its right to seek review of the validity or amount of this debt. If this debt is not paid in full within 30 days of Southwest's receipt of this letter, the debt is delinquent.
For delinquent debts, federal regulation (49 C.F.R. § 89.23) requires us to charge interest, from the date of this Order, at a fixed annual rate of 1.0%, along with an administrative charge of $12 per month, representing our costs of administrative collection. Furthermore, if the full amount assessed is not paid in full within 120 days of Southwest's receipt of this letter, we are required to assess an additional penalty at an annual rate of 2.625%, accruing from the date of delinquency. Delinquent debts may be reported to consumer reporting agencies or commercial credit bureaus, which could adversely affect Southwest's credit rating. Nonpayment of this debt may ultimately result in a referral to a collection agency, or the United States Department of Justice for enforced collection. Upon our receipt of Southwest's payment in the amount of $62,000.00 Southwest may consider this matter closed.



### 9/ 

# I DAVID DONNELL Regional Counsel Southwest Region

Archier, Attorney 222-5074 (Phone) 222-5945/5092 (Fax)

cc: FAA/MMAC Accounts Receivable

CERTIFICATE OF SERVICE
I certify that this order has been sent on June 15, 2011 by Federal Express to:

ames Archier Mr. Barry Brown Associate General Counsel Operations & Environment Southwest Airlines P.O. Box 36611 2702 Love Field Drive Dallas, Texas 75235-1611

Dated: June 15, 2011
Federal Aviation Administration Office of the Regional Counsel Southwest Region 2601 Meacham Blvd., Fort Worth, Texas 76193-0007 (817) 222-5074

10r.**~,(')** ·..**~ ~.~,.**  jl''-

# 0,,~f\1J{l¥{{ U.S. Deportr;lerlt of Trar,sportotion Federal Aviation Administration

'-Tune 21, 2011 Southwest Region Arkansas. Louisiana New Mexico. Oklahoma Texas Office of Regional Counsel, ASW-7 2601 Meacham Bivd Fort Worth, TX 76137 (817) 222·5099 (817) 222·5945/5092 FAX

Certfied Mail Return Receipt 7003 2260 0004 1705 8717
Mr. Gerald F. Murphy Crowell & Moring LLP 1001 Pennsylvania Avenue, NW Washington, DC 20004 Certfied Mail Return Receipt 7003 2260 0004 1705 8724
Mr. Brad Sheehan Director of Safety Atlantic Southeast Airlines & ExpressJet 9090 Toffie Terrace Atlanta, Georgia 30354
Pe: ExpressJet Airlines, Inc., ·FAA Case No. 2010SW700147 (Hazardous Material Enforcement Case) 

### ORDER ASSESSING CIVIL PENALTY
On August 30, 2010, Express Jet Airlines, Inc., was advised through a Notice of Proposed Civil Penalty that the Federal Aviation Administration proposed to assess a civil penalty in the amount of $5,550.00.
In order to avoid further litigation, the parties have agreed to settle this case for $5,000.00 and Express Jet Airlines, Inc., has agreed to waive any further rights of appeal. This order constitutes a finding by the Federal Aviation Administration of the facts and regulatory violations contained herein. It is determined that:
1. Between May 10, and May 16, 2010, at George Bush Intercontinental Airport, Houston, Texas, the Federal Aviation Administration conducted a comprehensive hazardous material inspection.
2. During the hazardous material shipping inspection, the inspectors reviewed Continental Airlines airway bill 00506916512.3. Express Jet**Air:i~es** was listed as the shipper and consignee on airway bill 00506916512.
4.**~his** airway bill listed Oxygen, Compressed, hazard class 2

. 2, I5

. l ) , TJNl 07 2

. 5. The airway bill 00506916512 was not signed and dated by Express Jet Airlines.
6. On FedEx Express air waybill numbers 987781588078 and 987881590582 Express Jet Airlines indicated "RQ'' in the hazardous material description for materials that were not hazardous substances as described in 49 C.F.R. § l72.20l(a) (4)
7. By reason of the above, ExpressJet Airlines violated the following Department of Transportation Hazardous Materials Regulations (Title 49 of the Code of Federal Regulations):

a. Section 171.2(e) (49 C.F.R. § 17l.2(e)), in that Express Jet Airlines offered hazardous material for transportation by air in commerce when the material was not properly classed, described, packaged, marked, labeled, and in a condition for shipment as required or authorized by applicable requirements of the hazardous malerlal regulations.
b. Section 172.20l(e) (49 C.F.R. § 172.20l(e)), in that it offered hazardous material for shipment by air and failed to ensure that the airway bill was dated.

c. Section 172.203(c) (2) (49 C.F.R. § 172.203(c) (2)), in that it offered hazardous material for transportation by air and improperly placed "RQ" in front of the hazardous material descriptions on the airway bills.
d. Section 172.204(d) (49 C.F.R. § 172.204(d)), in that it offered hazardous material for shipment by air and failed to sign the shipper's certification 

### NOW, THEREFORE, IT IS ORDERED, pursuant to 49 TJ.S.C. § 5123(a), that Express Jet Airlines be and is hereby, assessed a civil penalty of $5,000.00. Express Jet Airlines is hereby ordered to pay,**i~~ediately,** the assessed amour1t by mailing or delivering a certified check, money order, or company check in the amount of $5,000.00 payable to the "Federal Aviation Administration" addressed to:

2Federal Aviation Administration DOT/FAA MMAC AMZ-350 PO BOX 25770 Oklahoma City, Oklahoma 73125-5082 ATTN: Sonny Rogers
As an alternative method of payment, civil penalties may be paid with a credit card at the following website: http://www.pay.gov
The amo0nt of civil penalty assessed in this order constitutes a debt owed to the United States. Express Jet Airlines has now exhausted its right to seek review of the validity or amount of this debt. If this debt is not paid in full within 30 days of Express Jet Airlines's receipt of this letter, the debt is delinquent.
for delinquent debts, federal regulation (49 C.F.R. § 89.23) requires us to charge interest, from the date of this Order, at a fixed annual rate of 1.0%, along with an administrative charge of $12 per month, representing our costs of adn•"inislr:allve collecLluu. FuJCLlteL!llUJCe, if Lhe full d'llUUllL assessed is not paid in full within 120 days of Express Jet Airlines's receipt of this letter, we are required to assess an additional penalty at an annual rate of 2.625%, accruing from the date of delinquency. Delinquent debts may be reported to consumer reporting agencies or commercial credit bureaus, which could adversely affect Express Jet Airlines's credit rating. Nonpayment of this debt may ultimately result in a referral to a collection agency, or the United States Department of Justice for enforced collection. Upon our receipt of Express Jet Airlines's payment in the amount of $5,000.00 Express Jet Airlines may consider this matter closed.

3**DF~\'I** D DC)l\JNILL Re,;rior:.al Counsel Sot.:_th\,Jest Regi_cn

By: 

# >;1 ,,, 

# f6·cic ; <Jcyl[e's Archier, Attorney**~(317)** 222-5074 (Phone)

(817 I 222-5945/5092 (Fax)

cc: FAA/MMAC Accounts Receivable

4

### CERTIFICATE OF SERVICE
I ce':tify that this order has been sent oc June 21, 2011 by certified mail to:

Certfied Mail Return Receipt 7003 2260 0004 1705 8717
Mr. Gerald F. Murphy Crowell & 

### Moring LLP 1001 Pennsylvania Avenue, NW Washington, DC 20004 Certfied Mail Return Receipt 7003 2260 0004 1705 8724
Mr. Brad Sheehan Director of Safety Atlantic Southeast Airlines & ExpressJet 9090 Toffie Terrace Atlanta, Georgia 30354 

# )

i

# ~;':------JilL14 Dated: June 21, 2011

·**,J~es** 

### Archier / JYedera1 Aviation Administration /Office of the Regional Counsel 

# {// Southwest Region 2601 Meacham Blvd., Fort Worth, Texas 76193-0007 (817) 222-5074

5

# RESPONSE TO 1.13

RESPONSE TO 1.14

RESPONSE TO 1.15U.S. Department of Transportation Federal Aviation Administration

December 1, 2008 Southwest Region Arkansas, Louisiana, New Mexico, Oklahoma Texas Office of Regional Counsel FortWorth, TX 76193-0007 (817) 222-5099 (817) 222-594515092 FAX

Certified 

### Mail Return Receipt 7004 2510 0005 6023 1037
Mr. Francis C. Heil, Esquire Senior Attorney American Airlines l,egal Department P.O. Box 619616 MD 5675 DFW Airport, TX 75261-9616
Re: American Airlines, Inc., FAA Case No. 2008SW700060 

### ORDER ASSESSING CIVIL PENALTY
On June 16, 2008, American Airlines, Inc., was advised through a Notice of Proposed Civil Penalty that the Federal Aviation Administration proposed to assess a civil penalty in the amount of $49,000.00.
After considering all the available information, the parties have agreed to settle this case for $41,500.00 and American Airlines, Inc., has agree to a finding of violations as alleged and to waive any further rights of appeal. It has been determined that:
1. From January 22, 2008 to February 12, 2008, a special agent from the Federal Aviation conducted a hazardous materials assessment of American Airlines, Inc., (hereinafter "American").
2. During this assessment, the special agent discovered that American failed to properly complete the Notification to Pilot-In-Command (hereinafter "NOPIC") for hazardous materials American transported via passenger-carrying aircraft flights from Dallas/Fort Worth International Airport (hereinafter "DFW"), Texas.
3. On February 6, 2008, American failed to include the technical name for Flammable Solid, Organic, N.O.S., 4.1 UN1325, PG III on the Notification to Pilot-In-Command for flight 50 from DFW to London Gatwick International Airport,London, England. The technical name for this hazardous material is '-'iron oxide and aluminum".
4. On February 6, 2008, American failed to include the technical name for Polyamines, Liquid, Corrosive N.O.S., 8, UN2735, PG III on the Notification to Pilot-In-Command for flight 925 from DFW to Miami International Airport, Miami, Florida. The technical name is trithylene tetramine, metaxylenediamine.
5. On February 5, 2008, American failed to identify the location of COMAT, described as Dangerous Goods in Machinery, hazard class 9, UN3363, on the Notification to Pilot-In-Command form for flight 1499 from DFW to Norman Y. Mineta International Airport, San Jose, California
6. On February 5, 2008, American failed to identify the location of COMAT, described as Adhesives, hazard class 3, UN1133, Packing Group II on the Notification to Pilot-InCommand form, for flight 1046 from DFW to Miami International Airport, Miami, Florida.
7. On February 6, 2008, American failed to identify the location of COMAT, described as batteries, wet filled with alkali, hazard class 8, UN2795, on the Notification to Pilot-In-Command form for flight 739 from DFW to Los Angeles International Airport, Los Angeles, California.
8. On February 7, 2008, American failed to identify the location of COMAT, described as Dangerous Goods in Machinery, hazard class 9, UN3363 on the Notification to Pilot-In-Command form for flight 559 from DFW to Austin Bergstrom International Airport, Austin, Texas.
9. On February 7, 2008, American failed to identify the location of COMAT, described as Paint, hazard class 3, UN1263, Packing Group II on the Notification to Pilot-InCommand form for flight 1672 from DFW to Tulsa International Airport, Tulsa, Oklahoma.
10. American transported hazardous material in air commerce when it failed to provide the technical name of the hazardous materials on the Notification to Pilot-In-Command form.

211. American transported COMAT in air commerce when it failed to identify the location of the COMAT on its Notification to Pilot-In-Command form.
12. By reason of the facts and circumstances described in paragraphs 1 through 11 above, American violated the following Department of Transportation Hazardous Materials Regulations (Title 49 of the Code of Federal Regulations):

a. Section 175.l(b)) (49 C.F.R. § 175.1(b)), in that American transported hazardous material in air commerce when it did not comply with the requirements of Subpart A of Part 175. (49 C.F.R. § 175, et seq.).
b. Section 175.33(a) (1) (i) (49 C.F.R. § 175.33(a) (1) (i)), in that American transported hazardous material in air commerce when it failed to provide additional description requirements provided in§§ 172.202 and 172.203 on the Notification to Pilot-In-Command form.

c. Section 175.33(a)(4) (49 C.F.R. § 175.33(a)(4)), in that American transported hazardous material in air commerce when it failed to identify the location of COMAT on the Notification to Pilot-In-Command form. NOW, THEREFORE, IT IS ORDERED, pursuant to 49 U.S.C. § 5123, that American be and is hereby, assessed a civil penalty of $41,500.00.
American is hereby ordered to pay, immediately, the assessed amount by mailing or delivering a certified check, money order, or company check in the amount of $41,500.00 payable to the "Federal Aviation Administration" addressed to: DOT/FAA/MMAC, Accounts Receivable, AMZ-310, P.O.BOX 25082 Oklahoma City, Oklahoma 73125-5082
The amount of civil penalty assessed in this Order constitutes a debt owed to the United States. American has now exhausted its right to seek review of the validity or amount of this debt. If this debt is not paid in full within 30 days of American's receipt of this letter, the debt is delinquent.

3

### / 

# ( 

# I

i**(~** For delinquent debts, federal regulation (49 C.F.R. § 89.23) requires us to charge interest, from the date of this Order, at a fixed annual rate of 5.125%, along with an administrative charge of $12 per month, representing our costs of administrative collection. Furthermore, if the full amount assessed is not paid in full within 120 days of**~merican's** receipt of this letter, we are required to assess an additional penalty at an annual rate of 3.0%, accruing from the date of delinquency. Delinquent debts may be reported to consumer reporting agencies or commercial credit bureaus, which could adversely affect American's credit rating. Nonpayment of this debt may ultimately result in a referral to a collection agency, or the United States Department of Justice for enforced collection. Upon our receipt of American's payment in the amount of $41,500.00 American may consider this matter closed.

LYNETTE WORD Regional Counsel Southwest Region

By:**/L----~----~~~~~~~~** s Archier, Attorney 222-5074 (Phone) 222-5945/5092 (Fax)

4CERTIFICATE OF SERVICE
I certify that this Order has been sent on December 1, 2008 by certified mail, return receipt requested to:



# (**~/** Mr. Francis C. Heil, Esquire Senior Attorney American Airlines Legal Department P.O. Box 619616 MD 5675 DFW Airport, TX 75261-9616

Dated: December 1, 2008
Federal Aviation Administration ,6ffice of the Regional Counsel

Southwest Region 2601 Meacham Blvd., Fort Worth, Texas 76193-0007 (817) 222-5074

---- ----- - --
-------- ---


### 5U.S. Deportmer1t of Transportation Federal Aviation Administration



### [cJarch 12, 2009 Southwest Region Arkansas, Louisiana, New Mexico. Oklahoma Texas Office of Regional Counsel FortWorth, TX 76193-0007 (817) 222-5099 (817) 222-5945/5092 FAX



### Certified Mail Return Receipt 7004 2510 0005 6023 9606
Mr. Francis Heil Senior Attorney**P~erican** 

### Airlines Legal Department P.O. Box 619616 MD 5675 DFW Airport, Texas 75261-9616
Re: American Airlines, Inc., FAA Case No. 2008SW700102 

### ORDER ASSESSING CIVIL PENALTY
On July 10, 2008, American Airlines, Inc., (hereinafter "American") was advised through a Notice of Propbsed Civil Penalty that the Federal Aviation Administration proposed to assess a civil penalty in the amount of $63,600.00.
After considering all the available information, the parties have agreed to settle this case for $45,000.00 and American has agreed to waive any further rights of appeal. This Order constitutes a finding by the Federal Aviation Administration of the facts and regulatory violations contained herein.
1. On or about April 11, 2008, a special agent from the Federal Aviation Administration conducted a supplementary hazardous material assessment of American Airlines, Inc., (hereinafter "American")

. 2. At all relevant times, A.'Tlerican 1Nas the holder of Air 

### Carrier Operating Certificate No. AALA025A and Operations Specifications issued under Part 121 of the**F~deral** 

### Aviation Administration.
3. During this assessment, the special agent that American failed to properly complete the to the Pilot-In-Command (hereinafter "NOPIC") discovered Notification for hazardous

### materials Americar,_ -:ransported via passerH;rer-car:r:/in-;r**a~rcraft** 

### flights from Dallas/Fort Worth International Airport (hereinafter "D2Wu), Texas.
4. On March 2, 2008, the NOPIC for American flight number 1299 from DFW to Miami International Airport, Miami, Florida failed to include the packing group for a shipment described as Seat-belt pretensioners, hazard class 9, UN3268, PG II as required by hazardous material regulations.
5. On March 3, 2008, on the NOPIC for American flight 48, DFW to Paris Charles De Gaulle Airport, Paris, France, the basic description provided for a.p,ackage· conta-ining items classified as Aerosols, Flammable, 2.1 UN1950 and Flammable Liquid, N.O.S., 3, UN1993, PG II failed to include the technical name of the material and the packing group as required.
6. On March 6, 2008, on the NOPIC for American flight number 2344, DFW to Chicago O'Hare International Airport, Chicago, Illinois, the basic description provided for a shipment of items classified as Amines, Liquid, Corrosive N.O.S., hazard class 8, UN2735, packing group II, failed to include the technical name of the material as required.
7. On March 6, 2008, the NOPIC for American flight number 1299, DFW to Miami International Airport, Miami, Florida failed to include the packing group for a shipment described as Extracts, flavoring liquid, hazard class 3, UNll97, as required. The NOPIC also incorrectly referred to this material having a hazard class "3u 

### subsidiary risk.
8. On March 8, 2008, the NOPIC for American flight number 474 DFW to Hartsfield-Jackson International Airport, Atlanta, Georgia failed to include the packing group for a shipment described as Extracts, flavoring liquid, hazard class 3, UN1197, packing group II, as required.
9 On March 9, 2008, the NOPIC for A_merican flight**n'~rober** 

### 536, DFW to Hartsfield-Jackson International Airport, Atlanta, Georgia failed to include the proper hazard class for a shipment described as Extracts, flavoring liquid, hazard class 3, UN1197, packing group II, as required.
10. By reason of the facts and circumstances described in paragraphs 1 through 10 above, &merican violated the

2following Department of Transportation Hazardous Materials Regulations (Title 49 of the Code of Federal Regulations):

a. Section 175.l(b)) (49 C.F.R. § l75.llb)), in that Ainerican transported hazardous material in air commerce when it did not comply v1ith the requirements of Subpart A of Part 175. (49 C.F.R. § 175, 

### et seq.).
b. Section 175.33(a) (1)) (49 C.F.R. § 175.33(a) (1), in that American transported hazardous material in air commerce when it failed to provide the proper shipping name, hazard class, and identification number on the Notification to Pilot-In-Command form.

c. Section 175.33(a) (1) (i) (49 C.F.R. § l75.33(a) (1) (i)), in that American transported hazardous material in air commerce when it failed to provide additional description requirements provided in §§ 172.202 and 172.203 on the Notification to Pilot-In-Command form. NOW, THEREFORE, IT IS ORDERED, pursuant to 49 U.S.C. § 5123, that American be and is hereby, assessed a civil penalty of $45,000.00.
American is hereby ordered to pay, immediately, the assessed amount by mailing or delivering a certified check, money order, or company check in the amount of $45,000.00 payable to the "Federal Aviation Administration" addressed to: DOT/FAA/MMAC, Accounts Receivable, AMZ-310, P.O.BOX 25082 Oklahoma City, Oklahoma 73125-5082
The amount of civil penalty assessed in this Order constitutes a debt owed to the United States. American has now exhausted its right to seek review of the validity or amount of this debt. If this debt is not paid in full within 30 days of American's receipt of this letter, che debt is delinquent.
For delinquent debts, federal regulation (49 C.F.R. § 89. 23) requires us to charge interest, from the date of this Order, at a fixed annual rate of 5.125%, along with an administrative charge of $12 per month, representing our costs of administrative collection. Furthermore, if the

3full amount assessed is not paid in full within 120 days of American's receipt of this letter, 

### we are required c:o assess an additional penalty at an annual rate of 3.0%, accruing from the date of delinquency. Delinquent debts may be reported to consumer reporting agencies or commercial credit bureaus, c1hich could adversely affect American's credit rating. Nonpayment of this debt may ultimately result in a referral to a collection agency, or the United States Department of Justice for enforced collection. Upon our receipt of American's payment in the amount of $45,000.00 American may consider this matter closed.



### LYNETTE WORD Regional Counsel American Region

### /"

/ / By:-

..

# tft~~'{l(/f('- 

# kct/l
James Archier, Attorney (817) 222-5074 (Phone) (817) 222-5945/5092 (Fax) 

### '

4

### CERTIFICATE OF SERVICE
I certify that this Order has been sent on !'larch 12, 2009 by 

### certified mail, return receipt requested to:

Mr. Francis Heil

Senior Attorney American Airlines Legal Department P.O. Box 619616 MD 5675 DFW Airport, Texas 75261-9616 

# )

" 

# / 1 / ' By>":·,-ftt//_,((( t{ftl(.

# 5
/ James Archier Dated: March 12, 2009 Federal Aviation Administration Office of the Regional Counsel American Region 2601 Meacham Blvd., Fort Worth, Texas 76193-0007 (817) 

### 222-5074



### 5U.S. Deportment of Tronsportotior Federal Aviation Administration Southwest Region Arkansas_ Louisiana New Mexico_ Oklahoma Texas Office of Regional Counsel ASW-7 2601 Meacham Blvd Fort Worth TX 76137 (817) 222-5099 (817) 222-594515092 FAX



### Certified Mail Return Receipt 7004 l160 0002 0277 0698
Mr. Francis C. Heil Senior Attorney American Airlines P.O. Box 619616 Dallas/Fort Worth Airport Texas 75261-9616
Re: American Airlines, Inc., FAA Case No. 2010SW700123
ORDER ASSESSING CIVIL PENALTY
On .1\.ugust 11, 2010, American Airlines, Inc., was advised through a Notice of Proposed Civil Penalty that the Federal Aviation Administration proposed to assess a civil penalty in the amount of $32,500.00.
In order to avoid further litigation, the parties have agreed to settle this case for $22,500.00 and American Airlines, Inc., has agreed to waive any further rights of appeal. This order constitutes a finding by the Federal Aviation Administration of the facts and regulatory violations contained herein. It is determined that: l. From April 6, 2010 to April 19, 2010, the Federal Aviation Administration conducted a comprehensive hazardous material inspection at Dallas/Fort Worth International Airport ("DFW"), Texas.
2. 

### At all relevant times, Arnerican Airlines, Inc.,

("American") was the holder of Air Carrier Operating Certificate No. AALA025A and Operations Specifications issued under Part 121 of the Federal Aviation Administration.
3. 

### During the inspection Arnerican routinely failed to properly complete the Notification to the**Pilot-In-Co~,and**(**~~~,IOPIC"** l prc·'Tidecl tc tLe CaDtai:t c£ .2"merican flights as fol::_ov.:s:



### a. l482 On March 16, 2010, for P,,merican Fligh" Numbe1: (DFV1 J to Tampa,**Flo~ida** ("TP?_.'')), featured the basic description provided for a shipment, offered on AWB 8276-8420 (2 packages total), for items classified as Radioactive Materi.al, Type A Package, 7, UN2915. The NOPIC failed to include the proper shipping name as required.
b. On February 2, 2010, the NOPIC for P_merican Flight 2167 (OFW to San Jose, Costa Rica (SJO)) featured the basic description for a shipment offered on AWB 001-9657-6292 (1 package), for items classified as Phosphoric Acid Solution, 8, UN1805, PG III and Corrosive Liquid, N.O.S., 8, UN1760, PGIII. the NOPIC failed to include the technical name of the latter item as required.

c. On February 6, 2010, the NOPIC for American Flight 1690 (DFW to Miami International Airport**(~MIA"),** Miami, Florida featured the description for a shipment offered on AWB 001-8247-3603 (2 packages total), for items classified as Air Bag Modules, 9, UN3268. The NOPIC failed to include the packing group and**~Ex** number" as required.
d. On February 9, 2010, the NOPIC for American Flight Nurnber 433 (DFW to**~lexica** City, Mexico**(~MEX")** featured the description for a shipment offered on AWB 001-3790-0214 (3 packages total) for items classified as Corrosive Solid, N.O.S. 8, UN1759. The NOPIC failed to include the complete proper shipping name as required.

e. On February 13, 2010, the NOPIC for American Flight Number 409 (DFW to Mexico City, Mexico ("MEX")) featured the description for a shipment offered on AWB 001-8208-3750 (1 package), for items classified as Phosphoric Acid Solution, 8, UN1805, PG III and Corrosive Liquid, N.O.S., 8, UN1760, PGIII. The NOPIC failed to include the packing group of the latter item as required.
f. On February 16, 2010, the NOPIC for American Flight Number 1549 (DFW to Houston, Texas (IAH)),

2**Featu~ed t~e** **descr~ption** f8r a shiDment offered on**f'i~V,7E** ;JOl-77290566 (5 pccka:;!esj, for =-_terns 

### cletssi::ie6 as. 

### Gas Oil, 3,**Ur~1202.** 

### rhe NO?!C failed to include the packing group as required.


### g. On February 24, 2010, the NOPIC for American Flicjht Number 48 (DFW 1:0 Faris, France !"COG") I, featured the**descriptio~** for a shipment offered on AWB 7796-9043 (1 package), for an item classified 6S Adhesives, 3, UN1133, PGII. The NOPIC failed to include the packing group as required.
h. On February 28, 2010, tl:te NOPIC for American Flight Number 3 6 (DF\IJ to t1adrid, Spain ("MAD") 

### I, featured the description for a shipment offered on AWE 001-7878-3983 (1 package), of an item classified as Arnines, Liquid, Corrosive, N.O.S., 8, UN2735, PG II. The NOPIC failed to include the packing group as required.
i. On March 6, 2010, the NOPIC for American Flight Number 963 (DFW to Sao Paulo, Brazil (GRU)), featured the description for a shipment offered on AWB 001- 96383-416 (1 Package), for an item classified as Acetonitrile, 3 UN1648, PGII. The NOPIC failed to include the packing group as required. j. On March 12, 2010, the NOPIC for American Flight 651, 1266, and 1238 (DFW to Miami, Florida ("MIA") 

### I Featured the description for a shipment offered on AWE 001-9642-1555 (3 packages total, 1 package was transported on each flight), for items classified as Printing Ink, 3, UN1210, PG III. The NOPIC failed to include the packing group as required.
k. On March 16, 2010, the NOPIC for American Flight Number 2479**(DF~J** to Los Angeles, California (LAX)), featured the description for a shipment offered on AWB 001-9987-7606 (1 package), for items classified as Cartridges, Power Device, 1.48, UN0323. The NOPIC failed to include the "EX number" as required.
l. On April 9, 2010, the NOPIC for American Flight ·Number 963 (DFW to Sao Paulo, Brazil (GEU)), featured The description for a shipment offered on AWB 1306- 5113 (1 package), for an item classified as Flammable Liquid, Corrosive, N.O.S., 3 (8), UN2924, PG II. Tf:e



### 3

### NOPIC failed to include the subsidiary hazard class**na~e** 

### of the material as required.
4. On April 13, 2010, American failed to properly monitor the teleohone number indicated on the Notice to Pilot in Command as required by the hazardous material regulations.
5. By reason of the facts and circumstances described in paragraphs 1 through 10 above, American violated the following Department of Transportation Hazardous Materials Regulations (Title 49 of the Code of Federal Regulations):

a. Sectionl75.l(b)) (49C.F.R. §175.l(b)), inthat American transported hazardous material in air commerce when it did not comply with the requirements of Subpart A or Part 175. (49 C.F.H. § 175, et seq.). 

### b. Section 175.33(a) (1)) (49 

### C.F.R. § l75.33(a) (1), rn that American transported hazardous material in air cormnerce "'hen it failed to provide the proper shipping name, hazard class, and identification number on the Notification to Pilot-In-Command form.

c. Section 175.33(a) (1) (i) (49 C.F.R. § 175.33(a) (1) 

### (i)), in that American transported hazardous material in air commerce when it failed to provide additional description requirements provided in§§ 172.202 and 172.203 on the Notification to Pilot-In-Command form.
d. Section l75.33(a) (8)) (49 

### C.F.R. § l75.33(a) (8), 

### in that American transported hazardous material in air corrllierce when it failed to provide a telephone number of a person not aboard the aircraft whom the information from the pilot-in-command can be obtained and the phone number is monitored at all times the aircraft is in flight. NOW, THEREFORE, IT IS ORDERED, 

### pursuant to 49 U.S.C. § 5123 (a) , that American be and is hereby, assessed a civil penalty of $22,500.00.


### American is hereby ordered to pay, immediately, the assessed amount by mailing or delivering a certified check, money order, or company check in the amount of $22,500.00 

### payable to the "Federal }\viation Administration" addressed to:

4Federal Aviation Administration DOT/FAA MMAC AMZ-350 PO BOX 25770 Oklahoma City, Oklahoma 73125-5082 ATTN: Sonny Rogers
As an alternative method of payment, civil penalties may be paid with a credit card at the following website: http://www.pay.gov
The amount of civil penaltyassesse_c:l in _this order_ constitutes a debt owed to the United States. A.rnerican has now exhausted its right to seek review of the validity or amount of this debt. If this debt is not paid in full •eJithin 30 days of Amer:i_can' s receipt of this letter, the debt is delinquent.
For delinquent debts, federal regulation (49 C.F.R. § 89. 23) requires us to charge interest, from the date of this Order, at a fixed annual rate of 1.0%, along with an administrative charge of $12 per month, representing our costs of administrative collection. Furthermore, if the full amount assessed is not paid in full within 120 days of P11nerican' s receipt of this letter, we are required to assess an additional penalty at an annual rate of 2.625%, accruing from the date of delinquency. Delinquent debts may be reported to consumer reporting agencies or commercial credit bureaus, which could adversely affect American's credit rating. Nonpayment of this debt may ultimately result in a referral to a collection agency, or the United States Department of Justice for enforced collection. Upon our receipt of American's payment in the amount of $22,500.00 American may consider this matter closed.

5Lil'J!I0 DOCJNELL Ac:ing Regional Counsel .Southi·.Jest Region

By: 

### /

. 

# // /}

. 

# Jli,.V

# (t_/~_cf:tv_); James ·Ar;chier, Attornej/ (817) 222-5074 (Phone) (817) 222-5945/5092 (Fax)

cc: FAA/MMAC Accounts Receivable
CERTIFICATE OF SERVICE
I certify that this order has been sent on Jvlay 13, 2011 by certified mail to:

Mr. Francis C. Heil Senior Attorney American Airlines

P.O. Box 619616 Dallas/Fort Worth Airport Texas 75261-9616



### I ) 

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# ·~1/l.i_f:_c:"

# l:t!<~_f{J-, ./·Jafnes Archier Dated: Jvlay 13, 2011 Federal Aviation Administration Office of the Regional Counsel Southwest Region 2601 Meacham Blvd., Fort Worth, Texas 76193-0007 (817) 222-5074



### 6US,**Depa~ment** of Transportation Federal Aviation Administration

December 7, 2011
Via Federal Express Southwest Region Arkansas, Louisiana, New Mexico, Oklahoma Texas

Mr. Jonathan T. Linde Managing Director & Senior Counsel Regulatory United Airlines, Inc. 77 W. Wacker Drive 16th Floor HDQLD Chicago, Illinois 60601 

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Office of Regional Counsel, ASW-7 2601 Meacham Blvd Fort Worth, TX 76137 (817) 222-5099 (817) 222-5945/5092 FAX

Re: Continental Airlines, Inc., FAA Case No. 2010SW700146 

### ORDER ASSESSING CIVIL PENALTY
On September 1, 2011, Continental l\.irlines, Inc., was advised through an Amended Notice of Proposed Civil Penalty that the Federal Aviation Administration proposed to assess a civil penalty in the amount of $35,850.
In order to avoid further litigation, the parties have agreed to settle this case for $32,000 and Continental Airlines, Inc., has agreed to waive any further rights of appeal. This order constitutes a finding by the Federal Aviation Administration of the facts and regulatory violations contained herein. It is determined that:
1. From May 10, 2010 to May 18, 2010 the Federal Aviation Administration ("FAA") conducted a comprehensive hazardous material inspection of Continental Airlines, Inc. ("Continental") at George Bush Intercontinental Airport, Houston, Texas.
2. During this inspection the FlU\ inspector observed numerous discrepancies involving incorrect preparation of Notice to Pilot In Command, improper shipping paper acceptance and preparation, and lack of an emergency response telephone number on shipping papers.

_......,-:,

### 3. On or about April 20, 2010, the Notice to Pilot In Command for Continental for Flight 632 from Houston, Texas to LaGuardia, New York, via air waybill number 00557301893 lacked the prefix "UN" in the identification number used for the basic description of Dry Ice, UN1845.
4. On or about Harch 26, 2010, the Notice to Pilot In Command for Continental Flight 146 from Houston, Texas to Chicago, Illinois failed to include the technical name description for Gas N.O.S., 2.2 on air way bill number 60794707491.
5. On or about April 9, 2010, the Notice to Pilot In Cormnand for Continental Flight Number 1586 from Houston, Texas to Orlando, Florida failed to include the loading location for items classified as Dangerous Goods in Hachinery, hazard class 9, UN3363 on air waybill 005IAH34342453.
6. On or about Harch 24, 2010, the Notice to Pilot In Command for Continental Flight Number 1195 from Houston, Texas tc Los Angeles, California used an incomplete shipping name for Carbon Dioxide Solid, hazard class 9, UN1845 on air waybill 00579051442.
7. On or about Harch 30, 2010 the Notice to Pilot In Corrmand for Continental Flight Number 34 from Houston, Texas to London, England failed to include the notation for a Limited Quantity Shipment for Adhesive, hazard class 3, Packing Group II that was offered on air waybill 00595479414.
8. On or about July 20, 2009, Charles Justice prepared and offered a shipping paper on behalf of Continental with air waybill 005IAH34369543 for the transport of Flammable Liquid NOS, hazard class 3, Packing Group II from Houston, Texas to Cleveland, Ohio that did not include the required emergency response telephone number.
9. On or about July 16, 2009 Continental accepted a shipping paper, in conjunction with air waybill 00517004470, that lacked the identification number, proper shipping name and hazard class for Paint, hazard class 3, packing group III.
10. On or about April 26, 2009, Pedro Berrios prepared a shipping paper for Continental that was used in conjunction with air waybill 613260736946 to transport Life Saving Appliances, self-inflating, hazard class 9 from Houston, Texas to Newark, New Jersey. The hazardous material shipping description improperly included the notation "RQ".

2

### 11. By reason of the above, Continental violated the following Department of Transportation Hazardous Materials Regulations (Title 49 of the Code of Federal Regulations):

a. Section 171.2(e) (49 C.F.R. § 171.2(e)), in that Continental offered hazardous material for transportation by air in coiiLmerce when the material was not properly classed, described, packaged, marked, labeled, and in a condition for shipment as required or authorized by applicable requirements of the hazardous material regulations.
b. Section 172.200(a) (49 C.F.R. § 172.200(a)), which requires that each person offering a hazardous material for transportation to properly describe the hazardous material on the shipping papers.

c. Section 172.20l(a) (4) (49 C.F.R. § 172.20l(a) (4)) in that it offered hazardous material for transportation in air commerce when the shipping paper provided additional information that was inconsistent with the required description.
d. Section 172.20l(d)) (49 C.F.R. § 172.20l(d))) in that it 

### offered hazardous material for transportation in air commerce and failed to include an emergency response telephone number on the shipping paper as prescribed in subpart G.

e. Section 172.202(a) (1) (49 C.F.R. § 172.202 (a) (1)) in that it offered hazardous material for transportation in air commerce when the required hazardous material description on the shipping papers did not include the identification number prescribed for the material as shown in Column 4 of the§ 172.101 Table.
Section 172.202(a) (2) (49 C.F.R. § 172.202(a) (2)) in that it offered hazardous material for transportation in air commerce when the required hazardous material description on the shipping papers did not include the proper shipping name prescribed for the material in Column 2 of the§ 172.101 Table.
g. Section 172.202(a) (3) (49 C.F.R. § 172.202(a) (3)) in that it offered hazardous material for transportation in air commerce when the required shipping papers did not include the hazard class or division number prescribed for the material, as shown in Column (3) in the Hazardous Materials Table, referenced in section 172.101.

### h. Section 172.203(b) (49 C.F.R. § 

### 172.203(b)) in that it offered hazardous material for transportation in air commerce as "limited quantity" without providing the language "Limited Quantity" or "Ltd Qty" following the basic description.
l. Section 172.600 (49 C.F.R. § 

### 172.600)), which requires that each person offering a hazardous material for transportation to provide and maintain emergency response information during transportation and at the facility where hazardous materials are loaded for transportation, stored incidental to transportation or otherwise handled during any phase of transportation. j. 

### Section 172.604(a) (1)) (49 

### C.F.R. § 

### 172.604(a) (1)) in that it offered hazardous material for shipment by air and failed to provide an emergency response telephone number (including area code) for use in the event of an emergency involving hazardous material that is monitored at all times that the material is in transportation, including storage incidental to transportation.
k. Section 175.30(a) (2) (49 C.F.R. § 

### 175.30(a) (2) in that it accepted hazardous material aboard an aircraft and failed to ensure that the hazardous material was described and certified on a shipping paper prepared in duplicate in accordance with part 172 of this subchapter or as authorized by subpart C of part 171 of this subchapter.
1. Section 175.33(a) (1) (49 C.F.R. § 

### 175.33(a) (1) in that it accepted hazardous material aboard an aircraft for transportation by air and failed to provide the pilot-in-command the proper shipping name, hazard class and identification number of the hazardous material aboard the aircraft.

m. Section 175.33(a) (2) (49 C.F.R. § 

### 175.33(a) (2) ln that it accepted hazardous material aboard an aircraft for transportation by air and the operator of the aircraft failed to inform the pilot in command of the location of the hazardous materials. NOW, THEREFORE, IT IS ORDERED, pursuant to 49 U.S.C. § 

### 5123(a), that Continental be and is hereby, assessed a civil penalty of $32,000.00.
Continental is hereby ordered to pay,**i~mediately,** 

### the assessed amount by mailing or delivering a certified check, money order, or company check in the amount of $32,000.00 payable to the "Federal Aviation Administration" addressed to:

4Federal Aviation Administration DOT/FAA MMAC AMZ-350 PO BOX 25770 Oklahoma City, Oklahoma 73125-5082 ATTN: Sonny Rogers
As an alternative method of payment, civil penalties may be paid with a credit card at the following website: http://www.pay.gov
The amount of civil penalty assessed in this order constitutes a debt owed to the United States. Continental has now exhausted its right to seek review of the validity or amount of this debt. If this debt is not paid in full witchin 30 days of Continental's receipt of this letter, the debt is delinquent.
For delinquent debts, federal regulation (49 C.F.R. § 89.23) requires us to charge interest, from the date of this Order, at a fixed annual rate of 1.0%, along with an administrative charge of $12 per month, representing our costs of administrative collection. Furthermore, if the full amount assessed is not paid in full within 120 days of Continental's receipt of this letter, we are required to assess an additional penalty at an annual rate of 2.50%, accruing from the date of delinquency. Delinquent debts may be reported to consumer reporting agencies or commercial credit bureaus, which could adversely affect Continental's credit rating. Nonpayment of this debt may ultimately result in a referral to a collection agency, or the United States Department of Justice for enforced collection. Upon our receipt of Continental's payment in the amount of $32,000.00 Continental may consider this matter closed.

DAVID DONNELL Regional Counsel**South~Iest** Region

Attorney (Phone) 222-5945/5092 (Fax)



### 5cc: FAA/MMAC Accounts Receivable

CERTIFICATE OF SERVICE
I certify that this order has been sent on December 7, 2011 by Federal Express to:

s Archier Mr. JonQ.than L Linde Managing Director & Senior Counsel Regulatory United Air Lines, Inc. 77 W. Wacker Drive 16th Floor HDQLD Chicago, Illinois 60601



# 'I, j .<;_ 

### \../7 Dated: December 7, 2.011
deral Aviation Administration Office of the Regional Counsel Southwest Region 2601 Meacham Blvd., Fort Worth, Texas 76193-0007 (817) 222-5074



### 6U.S. Deportment of Transportation Federal Aviation Administration**Feb~uary** 

### 26, 2009 Southwest Region Arkansas, Louisiana New Mexico, Oklahoma Texas Office of Regional Counsel Fort Worth. TX 76193-0007 (817) 222-5099 (817) 222-594515092 FAX



### Certified Mail

- Return Receipt 7004 2510 0005 6023 9842
Ms. Ann M. Aktabowski Vice President, Customer Services World Airways, Inc. 101 fi'/orld Drive HLH Building Peachtree, Georgia 30269
Re: 

### World Airways, Inc., FAA Case No. 2007SW700311 

### ORDER ASSESSING CIVIL PENALTY
On January 27, 2009, World Airways, Inc., (hereinafter "World Airways") was advised through a Notice of Proposed Civil Penalty that the Federal Aviation Administration proposed to assess a civil penalty in the amount of $32,500.00.
After considering all the available information presented in the Informal Conference on February 25, 2009, the parties agreed to settle this case for $25,000.00 and World Airways has agreed to waive any further rights of appeal. This Order constitutes a finding by the Federal Aviation Administration of the facts and regulatory violations contained herein. The Administrator has determined that:
1. On or about November 5, 2006, World Airways accepted and transported a hazardous material shipment from Luanda, Angola to Houston, Texas.
2. The Federal Aviation Adrninistration (hereinafter "FAA") became aware of this shipment on October 9, 2008.
3. The shipment consisted of a package of human blood samples suspected of containing Marburg Virus, an infectious substance.li. Tte I1umar: b2_God**sa_~cples,** suspected of containir;_g MarbJrg Virus, were inside cf box and placed in the cYverhead storage comp2rtrnent of a passenger aircraft. Dry ice was used to cool -=he sample.


### 5. The package was labeled with a ''bio hazard sticker."
6. Marburg Virus is classified as a hazardous material under the Department of Transportation Hazardous Material Recjulations (49 C.F.R. § 172.101).
7. The proper shipping name for Marburg Infectious Substances, affecting humans, virus is 6. 2, UN2 814.
8. The package was shipped under Etiological Permit number 2006-02-077.
8. The package did not contain a shipper's declaration.
9. World Airways transported a hazardous material in cormnerce that failed to comply with the applicable requirements of subchapter C, subpart A of the hazardous material regulations.
10. World Airways accepted a hazardous material for transportation aboard an aircraft when the aircraft operator failed to ensure that the hazardous material was described and certified on a shipping paper prepared in duplicate in accordance part 172 of this subchapter or as authorized by subpart C of part 171 of this subchapter.
11. World Airways accepted hazardous material for transportation by air and failed to provide the pilot-incommand '"'ith a shipping paper that provided the proper shipping name, hazard class, and identification number of the material.
12. World Airways accepted and transported hazardous material in the cabin of a passenger-carrying aircraft.
13. By reason of the foregoing facts and circumstances, World Airways violated the following sections of the Department of Transportation Hazardous Materials Regulations (49 C.F.R. § 171 

### et.seq.

a. Section 171.2(f) (49 C.F.R. § 171.2(f) in that it transported a hazardous material in comrr,erce that failed to



### 2

### comply**·~-.7i-:_I-1 t~le** **app~:.icab_:_e 2:::'equ:~reme!its**  

### o£ subchapter C, suboart A of 

### the**hazardo~s m~te~ial** **regulat~ons.**


### o. Section l75.30(a) (2) (49 C.F'.E. § 

### 175.3C(a) (2) ::;_n that it 

### accepted a**haza~dous** 

### material for transportation aboard an aircraft when tte aircraft operator failed 

### to ensure that the hazardous material was described and 

### certified en a shipping paper prepared in duplicate in accordance with part l72 of this subchaoter or as authorized by subpart C of part 171 of this subchapter.

c. Section 175.33(a) (1) (49 C.F.R. § 

### 175.33(a) (1) 

### accepted hazardous material for transportation by air and failed to provide the pilot-in-oo!l'mand with a shipping paper that provided the proper shipping name, hazard class, and identification number of the material.
d. Section 175.75(b) (49 C.F.R. § 

### l75.75(b) accepted and transported hazardous material rn the cabin of a passenger-carrying aircraft. NOW, THEREFORE, IT IS ORDERED, pursuant to 49 U.S.C. § 

### 5123, that World Airways be and is hereby, assessed a civil penalty of $25,000.00.
World Airways is hereby ordered to pay, immediately, the assessed amount by mailing or delivering a certified check, money order, or company check in the amount of $25,000.00 payable to the "Federal Aviation Administration" addressed to: DOT/FAA/MMAC, Accounts Receivable, AMZ-310, P.O.BOX 25082 Oklahoma City, Oklahoma 73125-5082
The amount of civil penalty assessed in this Order constitutes a debt owed to the United States. World Airways has now exhausted its right to seek review of the validity or amount of rhis debt. If this debt is not paid in full within 30 days of World Airways' receipt of this letter, the debt is delinquent.
For delinquent debts, federal regulation (49 C.F.R. § 

### 89.23) requires us to charge interest, from the date of this Order, at a fixed annual rate of 5.125%, along with an admiEistrative charge of Sl2 per month, representing ourcosts of administrative collection. full amount assessed is not paid in E'urthermore, if the full**wi~hin** 120 days World Airways'**~eceipt** of this letter, we are required to assess an additional penalty ar an annual rate of 3.0%, accruing from the date of delinquency. of

Delinquent debts may be reported to consumer reporting agencies or commercial credit bureaus, 'flhich could adversely affect World Airways' credit rating. Nonpayrnent of this debt may ultimately result in a referral to a**collec~ion** agency, or the United States Department of Justice for enforced collection. Upon our receipt of World Airways' payment in the amount of $25,000.00 World Airways may consider this matter closed.

LYNETTE WORD Regional Counsel Southwest Region

By: 

# .J"t;dt6/c['r Oam§s Arc 1er, Attorney

(817) 222-5074 (Phone) (817) 222-5945/5092 (Fax)

4CERTIFICATE OF SERVICE

I certify that this Order nas been sent on February 26, 2009 by certified mail, return receipt requested to:

Ms. Ann M. Aktabowski Vice President, Customer Services 

### World Airways, Inc. 101**~Jorld** Drive

HLH Building Peachtree, Georgia 30269



# B-;=---=>

# '~~~') Dated: February 26, 2009 /. Ja es Archier

/ A'-;;,·deral Aviation Administration Office of the Regional Counsel South-,Iest Region 2601 Meacham Blvd., Fort Worth, Texas 76193-0007 (817) 222-5074

5